[Federal Register Volume 65, Number 248 (Tuesday, December 26, 2000)]
[Proposed Rules]
[Pages 81434-81438]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-32216]


 ========================================================================
 Proposed Rules
                                                 Federal Register
 ________________________________________________________________________
 
 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
 
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 

  Federal Register / Vol. 65, No. 248 / Tuesday, December 26, 2000 / 
Proposed Rules  

[[Page 81434]]



DEPARTMENT OF JUSTICE

8 CFR Parts 3 and 240

[AG Order No. 2345-2000]
RIN 1125-AA27; EOIR No. 125P


Authorities Delegated to the Director of the Executive Office for 
Immigration Review, the Chairman of the Board of Immigration Appeals, 
and the Chief Immigration Judge

AGENCY: Executive Office for Immigration Review, Department of Justice.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: This proposed rule would outline the authorities and powers 
delegated by the Attorney General to the Director of the Executive 
Office for Immigration Review, the Chairman of the Board of Immigration 
Appeals, and the Chief Immigration Judge. Members of the Board of 
Immigration Appeals would be designated as Appellate Immigration 
Judges.

DATES: Written comments must be submitted on or before February 26, 
2001.

ADDRESSES: Please submit written comments to Charles K. Adkins-Blanch, 
General Counsel, Executive Office for Immigration Review, Suite 2400, 
5107 Leesburg Pike, Falls Church, VA 22041; telephone (703) 305-0470.

FOR FURTHER INFORMATION CONTACT: Charles K. Adkins-Blanch, (703) 305-
0470.

SUPPLEMENTARY INFORMATION: In a January 1983 Departmental 
reorganization, the Attorney General created the Executive Office for 
Immigration Review (EOIR). This reorganization consolidated the 
Department's immigration review programs by placing the Immigration 
Judges (formerly special inquiry officers within the Immigration and 
Naturalization Service (INS)) with the Board of Immigration Appeals 
(BIA) in a newly-created organization, the EOIR. The Office of the 
Chief Administrative Hearing Officer (OCAHO) was also added to EOIR, 
placing similar quasi-judicial functions within a single Departmental 
organization.
    This proposed rule concerns the authorities of EOIR's Director, the 
Chief Immigration Judge, and the Chairman of the BIA, and the 
limitations on those authorities. The rule will assist EOIR in 
implementing consolidated management directives to handle more 
effectively and efficiently its immigration caseload, which has 
increased dramatically since 1983. The rule also will assist the public 
and those individuals who come before EOIR adjudicators in 
understanding how the Attorney General's authority is delegated to EOIR 
and among its management officials. The language of the proposed rule 
is intended to reflect the dynamic immigration arena in which EOIR 
employees work together, and with other components and agencies, to 
serve the public, implement statutes and regulations, and comply with 
Departmental directives and programs (e.g., Comprehensive Asylum Reform 
Initiative, Expedited Deportation of Criminal Aliens Initiative).
    The proposed rule contains amendments to 8 CFR 3.0 that would 
enumerate both the powers of the Director and limitations on his 
authority. These amendments highlight the Director's role as EOIR's 
manager and, as such, his responsibility for the uniform implementation 
of applicable statutes and regulations, including his authority to 
issue operational instructions and policies to all EOIR components to 
promote and advance the components' missions.
    The Director is tasked with ensuring the efficient disposition of 
all pending cases. The Director is given the power, in his discretion, 
to set priorities or time frames for the resolution of cases, to 
regulate the assignment of adjudicators to cases, and otherwise to 
manage the docket of matters to be decided by the BIA, the Immigration 
Judges, the Chief Administrative Hearing Officer, or the Administrative 
Law Judges (ALJs). The Director does not have the authority, however, 
to direct the result of an adjudication assigned to the BIA, an 
Immigration Judge, the Chief Administrative Hearing Officer, or an ALJ.
    The Director is also responsible for coordinating with other 
Departmental components, such as the INS, and with federal agencies, 
such as the State Department. He has the authority to evaluate the 
performance of EOIR's components, and to take corrective action where 
necessary. In addition to these powers, which allow the Director to 
manage uniformly the operations of the components, the Director 
exercises any other authority delegated to him by the Attorney General.
    In addition to enumerating the powers of the Director, the 
amendments to 8 CFR 3.0 would include information on the role of EOIR's 
Deputy Director and its General Counsel, and on the citizenship 
requirement for employment at EOIR.
    The proposed rule contains amendments to 8 CFR 3.1 that would add 
specific information on the organization of the BIA, the powers 
delegated to its Chairman, and the purpose of this quasi-judicial 
appellate body. The majority of the administrative decisions reviewed 
on appeal by the BIA are adjudications made by Immigration Judges. 
Therefore, to underscore the Board Members' role as appellate reviewers 
of Immigration Judges' decisions, and to treat EOIR adjudicators 
uniformly, the members of the BIA would be called Appellate Immigration 
Judges.
    The powers delegated to the Chairman of the BIA would be 
enumerated. The list is similar to that of the authorities vested in 
the EOIR's Director, but confined to the BIA. The amendments also would 
set forth the purpose of the BIA--to review administrative decisions 
issued by the INS and the Immigration Judges, as assigned by the 
Attorney General--and would indicate that the BIA shall resolve 
questions before it in a timely and impartial manner, consistent with 
the Immigration and Nationality Act (Act) and regulations. The BIA is 
tasked with providing clear and uniform guidance on the proper 
interpretation and administration of the Act and regulations to the 
INS, the Immigration Judges, and the general public through precedent 
decisions. The BIA's independent judgment and discretion would be 
recognized. Information on BIA panels and the designation of temporary 
BIA members would also be included.

[[Page 81435]]

    The proposed rule would change the title of subpart B of part 3 
from ``Immigration Court'' to the ``Office of the Chief Immigration 
Judge'' (OCIJ) to accurately reflect the structure of the agency, with 
the OCIJ as the component head of the Immigration Courts. The rule also 
would make the titles of the subparts in title 8 regarding EOIR's 
components consistent with the titles of such subparts in Title 28. The 
rule would define the term ``Immigration Court'' as local sites of the 
OCIJ where proceedings are held before Immigration Judges and records 
of proceedings are created.
    The proposed rule also contains amendments to 8 CFR 3.9 that would 
add specific information on the organization of the OCIJ, the powers 
delegated to the Chief Immigration Judge, the Immigration Courts, and 
the powers and duties of Immigration Judges. As in the case of the 
Chairman of the BIA, the powers delegated to the Chief Immigration 
Judge would be enumerated. The list is similar to that of the 
authorities vested in EOIR's Director, but confined to the OCIJ. The 
Chief Immigration Judge is responsible for the supervision, direction, 
and scheduling of the Immigration Judges in the conduct of the hearings 
and other duties assigned to them. The Chief Immigration Judge also 
issues operational instructions and policy, including procedural 
guidance on the implementation of new statutory or regulatory 
authority. Immigration Judges would continue to exercise their 
independent judgment and discretion, and take any action consistent 
with the Act and regulations that is appropriate and necessary for the 
disposition of the cases before them.
    Finally, the proposed rule would delete two sentences from section 
240.1 of title 8 to make that section consistent with the proposed 
redesignations and revisions to part 3 of that title.

Regulatory Flexibility Act

    The Attorney General, in accordance with 5 U.S.C. 605(b), has 
reviewed this proposed rule and, by approving it, certifies that it 
will affect only Departmental employees, individuals in immigration 
proceedings before the EOIR, and practitioners who appear before EOIR. 
Therefore, this proposed rule will not have a significant economic 
impact on a substantial number of small entities.

Unfunded Mandates Reform Act of 1995

    This proposed rule will not result in the expenditure by state, 
local, and tribal governments, in the aggregate, or by the private 
sector, of $100 million or more in any one year, and it will not 
significantly or uniquely affect small governments. Therefore, no 
actions were deemed necessary under the provisions of the Unfunded 
Mandates Reform Act of 1995.

Small Business Regulatory Enforcement Fairness Act of 1996

    This proposed rule is not a major rule as defined by section 251 of 
the Small Business Regulatory Enforcement Fairness Act of 1996, 5 
U.S.C. 804. This rule will not result in an annual effect on the 
economy of $100 million or more; a major increase in costs or prices; 
or significant adverse effects on competition, employment, investment, 
productivity, innovation, or on the ability of United States-based 
companies to compete with foreign-based companies in domestic and 
export markets.

Executive Order 12866

    This proposed rule has been drafted and reviewed in accordance with 
Executive Order 12866, section 1(b), Principles of Regulation. This 
proposed rule falls within a category of actions that the Office of 
Management and Budget (OMB) has determined not to constitute 
``significant regulatory actions'' under section 3(f) of Executive 
Order 12866, Regulatory Planning and Review. Accordingly, it has not 
been submitted to OMB for review.

Executive Order 13132

    This proposed rule will not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government. Therefore, in accordance with section 6 
of Executive Order 13132, the Department of Justice has determined that 
this rule does not have sufficient federalism implications to warrant a 
federalism summary impact statement.

Executive Order 12988

    This proposed rule meets the applicable standards set forth in 
sections 3(a) and 3(b)(2) of Executive Order 12988.

Plain Language Instructions

    We try to write clearly. If you can suggest how to improve the 
clarity of these regulations, call or write Charles K. Adkins-Blanch, 
General Counsel, Executive Office for Immigration Review, Suite 2400, 
5107 Leesburg Pike, Falls Church, VA 22041; telephone (703) 305-0470.

List of Subjects

8 CFR Part 3

    Administrative practice and procedure, Aliens, Immigration, Legal 
services, Organization and functions (Government agencies).

8 CFR Part 240

    Administrative practice and procedure, Aliens.

    Accordingly, for the reasons set forth in the preamble, parts 3 and 
240 of chapter I of title 8 of the Code of Federal Regulations are 
proposed to be amended as follows:

PART 3--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

    1. The authority citation for 8 CFR part 3 continues to read as 
follows:


    Authority: 5 U.S.C. 301; 8 U.S.C. 1103, 1252 note, 1252b, 1324b, 
1362; 28 U.S.C. 509, 510, 1746; sec. 2, Reorg. Plan No. 2 of 1950, 3 
CFR, 1949-1953 Comp., p. 1002.

    2. Revise Sec. 3.0 to read as follows:


Sec. 3.0  Executive Office for Immigration Review.

    (a) Organization. Within the Department of Justice, there shall be 
an Executive Office for Immigration Review (EOIR), headed by a Director 
who is appointed by the Attorney General. The Director shall be 
assisted by a Deputy Director and by a General Counsel. EOIR shall 
include the Board of Immigration Appeals, the Office of the Chief 
Immigration Judge, the Office of the Chief Administrative Hearing 
Officer, and such other staff as the Attorney General or Director may 
provide.
    (b) Powers of the Director. (1) The Director shall manage EOIR and 
its employees and shall be responsible for the direction and 
supervision of the Board, the Office of the Chief Immigration Judge, 
and the Office of the Chief Administrative Hearing Officer in the 
execution of their respective duties pursuant to the Act and the 
provisions of this chapter. Unless otherwise provided by the Attorney 
General, the Director shall report to the Deputy Attorney General and 
the Attorney General. The Director shall have the authority to:
    (i) Issue operational instructions and policy, including procedural 
instructions regarding the implementation of new statutory or 
regulatory authorities;
    (ii) Direct the conduct of all EOIR employees to ensure the 
efficient disposition of all pending cases, including the power, in his 
discretion, to set priorities or time frames for the

[[Page 81436]]

resolution of cases; to direct that the adjudication of certain cases 
be deferred; to regulate the assignment of adjudicators to cases; and 
otherwise to manage the docket of matters to be decided by the Board, 
the Immigration Judges, the Chief Administrative Hearing Officer, or 
the Administrative Law Judges;
    (iii) Provide for appropriate administrative coordination with the 
other components of the Department of Justice, including the 
Immigration and Naturalization Service, and with the Department of 
State;
    (iv) Evaluate the performance of the Board of Immigration Appeals, 
the Office of the Chief Immigration Judge, the Office of the Chief 
Administrative Hearing Officer, and other EOIR activities, making 
appropriate reports and inspections, and take corrective action where 
needed; and
    (v) Exercise such other authorities as the Attorney General may 
provide.
    (2) The Director may delegate the authority given to him by this 
part or by the Attorney General to the Deputy Director, the General 
Counsel, the Chairman of the Board of Immigration Appeals, the Chief 
Immigration Judge, the Chief Administrative Hearing Officer, or any 
other EOIR employee.
    (c) Limit on the Authority of the Director. The Director shall have 
no authority to adjudicate cases arising under the Act or regulations 
and shall not direct the result of an adjudication assigned to the 
Board, an Immigration Judge, the Chief Administrative Hearing Officer, 
or an Administrative Law Judge; provided, however, that nothing in this 
part shall be construed to limit the authority of the Director under 
paragraph (b) of this section.
    (d) Deputy Director. The Deputy Director shall advise and assist 
the Director in the management of EOIR and the formulation of policy 
and guidelines. Unless otherwise limited by law or by order of the 
Director, the Deputy Director shall exercise the full authority of the 
Director in the discharge of his or her duties.
    (e) General Counsel. Subject to the supervision of the Director, 
the General Counsel shall serve as the chief legal counsel of EOIR. The 
General Counsel shall provide legal advice and assistance to the 
Director, Deputy Director, and heads of the components within EOIR, and 
shall supervise all legal activities of EOIR not related to 
adjudications arising under the Act or this chapter.
    (f) Citizenship Requirement for Employment. (1) An application to 
work at EOIR, either as an employee or a volunteer, must include a 
signed affirmation from the applicant that he or she is a citizen of 
the United States of America. If requested, the applicant must document 
United States citizenship.
    (2) The Director of EOIR may, by explicit written determination and 
to the extent permitted by law, authorize the appointment of an alien 
to an EOIR position when necessary to accomplish the work of EOIR.
    3. Amend Sec. 3.1 by:
    a. Revising the heading;
    b. Revising paragraphs (a)(1), (2), and (3);
    c. Redesignating paragraphs (a)(4), (5), and (6) as paragraphs 
(a)(8), (9), and (10), respectively and revising newly designated 
paragraph (a)(10);
    d. Adding new paragraphs (a)(4), (a)(5), (a)(6), and (a)(11);
    e. Removing paragraph (d)(1); and
    f. Redesignating paragraphs (d)(2), (3), and (4) as (d)(1), (2), 
and (3), respectively, to read as follows:

Subpart A--Board of Immigration Appeals


Sec. 3.1  Organization and powers of the Board of Immigration Appeals.

    (a)(1) In general. Within the Executive Office for Immigration 
Review (EOIR), there shall be a Board of Immigration Appeals consisting 
of a Chairman, two Vice Chairmen, and 18 other Board Members. The Board 
shall be subject to the supervision of the Director of EOIR and shall 
function as an appellate body charged with the review of those 
administrative adjudications under the Act that the Attorney General 
may by regulation assign it. The Board Members shall be attorneys 
appointed by the Attorney General to act as the Attorney General's 
delegates in the cases that come before them. The Board Members shall 
be known as Appellate Immigration Judges. A vacancy, or the absence or 
unavailability of a Board Member, shall not impair the right of the 
remaining members to exercise the powers of the Board.
    (2) Position and Powers of the Chairman and Vice Chairmen--(i) The 
Attorney General shall appoint a Chairman who, subject to the 
supervision of the Director, shall manage the Board. The Attorney 
General shall also appoint two Vice Chairmen to assist the Chairman. 
The Vice Chairmen may exercise all of the powers and duties of the 
Chairman in the Chairman's absence or unavailability. The Chairman 
shall have the authority to:
    (A) Issue operational instructions and policy, including procedural 
instructions regarding the implementation of new statutory or 
regulatory authorities;
    (B) Provide for appropriate training of Board members and staff on 
the conduct of their powers and duties;
    (C) Direct the conduct of all employees assigned to the Board to 
ensure the efficient disposition of all pending cases, including the 
power, in his discretion, to set priorities or time frames for the 
resolution of cases; to direct that the adjudication of certain cases 
be deferred; to regulate the assignment of Board Members to cases; and 
otherwise to manage the docket of matters to be decided by the Board;
    (D) Evaluate the performance of the Board by making appropriate 
reports and inspections, and take corrective action where needed;
    (E) Adjudicate cases as a Board Member; and
    (F) Exercise such other authorities as the Director may provide.
    (ii) Limit on the Authority of the Chairman. The Chairman shall 
have no authority to direct the result of an adjudication assigned to 
another Board Member or panel of members; provided, however, that 
nothing in this part shall be construed to limit the authority of the 
Chairman under paragraph (a)(2)(i) of this section.
    (3) Purpose. The Board shall review administrative decisions 
assigned to it by the Attorney General through regulation. In reviewing 
those cases, the Board shall seek to resolve the questions before it in 
a manner that is timely, impartial, and consistent with the Act and 
regulations. In addition, the Board, through precedent decisions, shall 
provide clear and uniform guidance to the Service, the Immigration 
Judges, and the general public on the proper interpretation and 
administration of the Act and regulations. In deciding the individual 
cases before them, Board Members shall exercise their independent 
judgment and discretion and may take any action consistent with their 
authorities under the Act and regulations that is appropriate and 
necessary for the disposition of such cases.
    (4) Panels. The Chairman may divide the Board into three-member 
panels and designate a Presiding Member of each panel. The Chairman may 
from time to time make changes in the composition of such panels and of 
Presiding Members. A three-member panel may include one Temporary Board 
Member designated by the Director pursuant to paragraph (a)(6) of this 
section. Each panel shall review and decide cases by majority vote. 
Each panel may exercise the appropriate authority of the Board that is 
necessary for the adjudication of cases before it. In the case of an 
unopposed motion or a motion to

[[Page 81437]]

withdraw an appeal pending before the Board, a single Board Member may 
exercise the appropriate authority of the Board that is necessary for 
the adjudication of such motions. In addition, a single Board Member 
may exercise the same authority in disposing of the following matters:
    (i) A Service motion to remand an appeal from the denial of a visa 
petition where the Regional Service Center Director requests that the 
matter be remanded to the Service for further consideration of the 
appellant's arguments or evidence raised on appeal;
    (ii) A case where remand is required because of a defective or 
missing transcript; and other procedural or ministerial adjudications 
as provided by the Chairman.
    (5) Motions to reconsider or to reopen. A motion to reconsider or 
reopen a decision that was rendered by a single Board Member may be 
adjudicated by that Member.
    (6) Designation of Temporary Board Members. In his discretion, the 
Director may from time to time designate other individuals to serve as 
Temporary Board Members as follows:
    (i) The Director may designate Immigration Judges, retired Board 
Members, retired Immigration Judges, and Administrative Law Judges 
employed within EOIR to act as temporary, additional members of the 
Board for terms not to exceed six months.
    (ii) Whenever Temporary Board Members are designated to serve, 
their participation in a case shall continue to its normal conclusion, 
provided that Temporary Board Members shall have no role in the actions 
of the Board en banc.
* * * * *
    (10) Board Staff. The Board may be assisted in its work by 
attorneys and other personnel as the Director provides.
    (11) Governing Standards. The authorities of the Board are those 
provided in this chapter. The Board shall be governed by the provisions 
and limitations prescribed by the Act and this chapter, by the 
precedent decisions of the Board, and by decisions of the Attorney 
General (through review of a decision of the Board, by written order, 
or by determination and ruling pursuant to section 103 of the Act).
* * * * *
    4. Revise the heading to Subpart B to read as follows:

Subpart B--Office of the Chief Immigration Judge

    5. Revise Sec. 3.9 to read as follows:


Sec. 3.9  Office of the Chief Immigration Judge.

    (a) Organization. Within the Executive Office for Immigration 
Review, there shall be an Office of the Chief Immigration Judge (OCIJ), 
consisting of the Chief Immigration Judge, the Immigration Judges, and 
such other staff as the Director deems necessary. The Attorney General 
shall appoint the Chief Immigration Judge and such Deputy Chief 
Immigration Judges and Assistant Chief Immigration Judges as may be 
necessary to assist the Chief Immigration Judge.
    (b) Powers of the Chief Immigration Judge. Subject to the 
supervision of the Director, the Chief Immigration Judge shall be 
responsible for the supervision, direction, and scheduling of the 
Immigration Judges in the conduct of the hearings and duties assigned 
to them. The Chief Immigration Judge shall have the authority to:
    (1) Issue operational instructions and policy, including procedural 
instructions regarding the implementation of new statutory or 
regulatory authorities;
    (2) Provide for appropriate training of the Immigration Judges and 
other OCIJ staff on the conduct of their powers and duties;
    (3) Direct the conduct of all employees assigned to OCIJ to ensure 
the efficient disposition of all pending cases, including the power, in 
his discretion, to set priorities or time frames for the resolution of 
cases, to direct that the adjudication of certain cases be deferred, to 
regulate the assignment of Immigration Judges to cases, and otherwise 
to manage the docket of matters to be decided by the Immigration 
Judges;
    (4) Evaluate the performance of the Immigration Courts and other 
OCIJ activities by making appropriate reports and inspections, and take 
corrective action where needed;
    (5) Adjudicate cases as an Immigration Judge; and
    (6) Exercise such other authorities as the Director may provide.
    (c) Limit on the Authority of the Chief Immigration Judge. The 
Chief Immigration Judge shall have no authority to direct the result of 
an adjudication assigned to another Immigration Judge, provided, 
however, that nothing in this part shall be construed to limit the 
authority of the Chief Immigration Judge in paragraph (b) of this 
section.
    (d) Immigration Court. The term Immigration Court shall refer to 
the local sites of the OCIJ where proceedings are held before 
Immigration Judges and where the records of those proceedings are 
created and maintained.
    6. Revise Sec. 3.10 to read as follows:


Sec. 3.10  Immigration Judges.

    (a) Appointment. Immigration Judges shall be attorneys whom the 
Attorney General appoints as administrative judges within the Office of 
the Chief Immigration Judge to conduct specified classes of 
proceedings, including hearings under section 240 of the Act. 
Immigration Judges shall act as the Attorney General's delegates in the 
cases that come before them.
    (b) Powers and duties. In conducting hearings under section 240 of 
the Act and such other proceedings the Attorney General may assign to 
them, Immigration Judges shall exercise the powers and duties delegated 
to them by the Act and by the Attorney General through regulation. In 
deciding the individual cases before them, Immigration Judges shall 
exercise their independent judgment and discretion and may take any 
action consistent with their authorities under the Act and regulations 
that is appropriate and necessary for the disposition of such cases. 
Immigration Judges shall administer oaths, receive evidence, and 
interrogate, examine, and cross-examine aliens and any witnesses. 
Subject to Secs. 3.35 and 287.4 of this chapter, they may issue 
administrative subpoenas for the attendance of witnesses and the 
presentation of evidence. In all cases, Immigration Judges shall seek 
to resolve the questions before them in a timely and impartial manner 
consistent with the Act and regulations.
    (c) Review. Decisions of Immigration Judges are subject to review 
by the Board of Immigration Appeals in any case in which the Board has 
jurisdiction as provided in subpart A of this part.
    (d) Governing standards. Immigration Judges shall be governed by 
the provisions and limitations prescribed by the Act and this chapter, 
by the decisions of the Board, and by the Attorney General (through 
review of a decision of the Board, by written order, or by 
determination and ruling pursuant to section 103 of the Act).

PART 240--PROCEEDINGS TO DETERMINE REMOVABILITY OF ALIENS IN THE 
UNITED STATES

    7. The authority citation for 8 CFR part 240 continues to read as 
follows:


    Authority: 8 U.S.C. 1103, 1182, 1186a, 1224, 1225, 1226, 1227, 
1251, 1252 note, 1252a, 1252b, 1362; secs. 202 and 203, Pub. L. 105-
100 (111 Stat. 2160, 2193); sec. 902, Pub. L. 105-277 (112 Stat. 
2681); 8 CFR part 2.


[[Page 81438]]



Subpart A--Removal Proceedings

    8. Amend Sec. 240.1 by removing the first and second sentences of 
paragraph (a)(2).

    Dated: December 10, 2000.
Janet Reno,
Attorney General.
[FR Doc. 00-32216 Filed 12-22-00; 8:45 am]
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