Senate Bill sb1584c2

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    Florida Senate - 2003                    CS for CS for SB 1584

    By the Committees on Judiciary; Governmental Oversight and
    Productivity; and Senator Aronberg




    308-2383-03

  1                      A bill to be entitled

  2         An act relating to administrative procedures;

  3         amending s. 120.52, F.S.; revising definition

  4         of invalid exercise of delegated legislative

  5         authority; amending s. 120.54, F.S.; revising

  6         provisions with respect to uniform rules;

  7         providing requirements with respect to the

  8         application of alleged facts to specific rules

  9         or statutes; amending s. 120.56, F.S.; revising

10         rule challenges; providing hearings of such

11         challenges to be held de novo; providing for

12         the standard of proof to be used; revising

13         procedures for agency response in unadopted

14         rule proceedings; amending s. 120.569, F.S.;

15         revising provisions with respect to decisions

16         that affect substantial interest; providing for

17         initial scheduling orders by the administrative

18         law judge; providing for a discovery period;

19         amending s. 120.57, F.S.; revising provisions

20         with respect to additional procedures

21         applicable to hearings involving disputed

22         issues of material fact; revising procedures in

23         unadopted rule proceedings; providing that an

24         order relinquishing jurisdiction shall be

25         rendered under certain circumstances; providing

26         when an agency must rule on exceptions;

27         amending s. 120.595, F.S.; redefining the term

28         "improper purpose" and conforming a

29         cross-reference; declaring that other

30         provisions relating to attorney's fees and

31         costs are unaffected by s. 120.595, F.S.;

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 1         amending s. 120.60, F.S.; revising provisions

 2         with respect to licensing; providing for

 3         license issuance by default in specified

 4         circumstances; amending s. 120.68, F.S.;

 5         revising provisions with respect to judicial

 6         review; providing additional grounds for

 7         certain petitions challenging an agency rule as

 8         an invalid exercise of delegated legislative

 9         authority; amending s. 57.105, F.S.; providing

10         administrative law judge authority to award

11         attorney's fees and damages; amending s.

12         57.111, F.S.; revising attorney's fees on civil

13         actions and administrative proceedings

14         initiated by state agencies; providing an

15         effective date.

16  

17  Be It Enacted by the Legislature of the State of Florida:

18  

19         Section 1.  Subsection (8) of section 120.52, Florida

20  Statutes, is amended to read:

21         120.52  Definitions.--As used in this act:

22         (8)  "Invalid exercise of delegated legislative

23  authority" means action which goes beyond the powers,

24  functions, and duties delegated by the Legislature. A proposed

25  or existing rule is an invalid exercise of delegated

26  legislative authority if any one of the following applies:

27         (a)  The agency has materially failed to follow the

28  applicable rulemaking procedures or requirements set forth in

29  this chapter;

30         (b)  The agency has exceeded its grant of rulemaking

31  authority, citation to which is required by s. 120.54(3)(a)1.;

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 1         (c)  The rule enlarges, modifies, or contravenes the

 2  specific provisions of law implemented, citation to which is

 3  required by s. 120.54(3)(a)1.;

 4         (d)  The rule is vague, fails to establish adequate

 5  standards for agency decisions, or vests unbridled discretion

 6  in the agency;

 7         (e)  The rule is arbitrary or capricious. A rule is

 8  arbitrary if it is not supported by logic or the necessary

 9  facts; a rule is capricious if it is adopted without thought

10  or reason or is irrational; or

11         (f)  The rule is not supported by competent substantial

12  evidence; or

13         (f)(g)  The rule imposes regulatory costs on the

14  regulated person, county, or city which could be reduced by

15  the adoption of less costly alternatives that substantially

16  accomplish the statutory objectives.

17  

18  A grant of rulemaking authority is necessary but not

19  sufficient to allow an agency to adopt a rule; a specific law

20  to be implemented is also required. An agency may adopt only

21  rules that implement or interpret the specific powers and

22  duties granted by the enabling statute. No agency shall have

23  authority to adopt a rule only because it is reasonably

24  related to the purpose of the enabling legislation and is not

25  arbitrary and capricious or is within the agency's class of

26  powers and duties, nor shall an agency have the authority to

27  implement statutory provisions setting forth general

28  legislative intent or policy. Statutory language granting

29  rulemaking authority or generally describing the powers and

30  functions of an agency shall be construed to extend no further

31  

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 1  than implementing or interpreting the specific powers and

 2  duties conferred by the same statute.

 3         Section 2.  Paragraph (b) of subsection (5) of section

 4  120.54, Florida Statutes, is amended to read:

 5         120.54  Rulemaking.--

 6         (5)  UNIFORM RULES.--

 7         (b)  The uniform rules of procedure adopted by the

 8  commission pursuant to this subsection shall include, but are

 9  not be limited to:

10         1.  Uniform rules for the scheduling of public

11  meetings, hearings, and workshops.

12         2.  Uniform rules for use by each state agency that

13  provide procedures for conducting public meetings, hearings,

14  and workshops, and for taking evidence, testimony, and

15  argument at such public meetings, hearings, and workshops, in

16  person and by means of communications media technology. The

17  rules shall provide that all evidence, testimony, and argument

18  presented shall be afforded equal consideration, regardless of

19  the method of communication. If a public meeting, hearing, or

20  workshop is to be conducted by means of communications media

21  technology, or if attendance may be provided by such means,

22  the notice shall so state. The notice for public meetings,

23  hearings, and workshops utilizing communications media

24  technology shall state how persons interested in attending may

25  do so and shall name locations, if any, where communications

26  media technology facilities will be available. Nothing in this

27  paragraph shall be construed to diminish the right to inspect

28  public records under chapter 119. Limiting points of access to

29  public meetings, hearings, and workshops subject to the

30  provisions of s. 286.011 to places not normally open to the

31  public shall be presumed to violate the right of access of the

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 1  public, and any official action taken under such circumstances

 2  is void and of no effect. Other laws relating to public

 3  meetings, hearings, and workshops, including penal and

 4  remedial provisions, shall apply to public meetings, hearings,

 5  and workshops conducted by means of communications media

 6  technology, and shall be liberally construed in their

 7  application to such public meetings, hearings, and workshops.

 8  As used in this subparagraph, "communications media

 9  technology" means the electronic transmission of printed

10  matter, audio, full-motion video, freeze-frame video,

11  compressed video, and digital video by any method available.

12         3.  Uniform rules of procedure for the filing of notice

13  of protests and formal written protests.

14         4.  Uniform rules of procedure for the filing of

15  petitions for administrative hearings pursuant to s. 120.569

16  or s. 120.57.  Such rules shall require the petition to

17  include:

18         a.  The identification of the petitioner.

19         b.  A statement of when and how the petitioner received

20  notice of the agency's action or proposed action.

21         c.  An explanation of how the petitioner's substantial

22  interests are or will be affected by the action or proposed

23  action.

24         d.  A statement of all material facts disputed by the

25  petitioner or a statement that there are no disputed facts.

26         e.  A statement of the ultimate facts alleged,

27  including a statement of the specific facts the petitioner

28  contends warrant reversal or modification of the agency's

29  proposed action.

30         f.  A statement of the specific rules or statutes that

31  the petitioner contends require reversal or modification of

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 1  the agency's proposed action, including an explanation of how

 2  the alleged facts relate to the specific rules or statutes.

 3         g.  A statement of the relief sought by the petitioner,

 4  stating precisely the action petitioner wishes the agency to

 5  take with respect to the proposed action.

 6         5.  Uniform rules of procedure for the filing and

 7  prompt disposition of petitions for declaratory statements.

 8         6.  Provision of a method by which each agency head

 9  shall provide a description of the agency's organization and

10  general course of its operations.

11         7.  Uniform rules establishing procedures for granting

12  or denying petitions for variances and waivers pursuant to s.

13  120.542.

14         Section 3.  Paragraph (e) of subsection (1), paragraph

15  (a) of subsection (3), and paragraph (e) of subsection (4) of

16  section 120.56, Florida Statutes, are amended to read:

17         120.56  Challenges to rules.--

18         (1)  GENERAL PROCEDURES FOR CHALLENGING THE VALIDITY OF

19  A RULE OR A PROPOSED RULE.--

20         (e)  Hearings held under this section shall be de novo

21  in nature. The standard of proof shall be the preponderance of

22  the evidence. Hearings shall be conducted in the same manner

23  as provided by ss. 120.569 and 120.57, except that the

24  administrative law judge's order shall be final agency action.

25  The petitioner and the agency whose rule is challenged shall

26  be adverse parties. Other substantially affected persons may

27  join the proceedings as intervenors on appropriate terms which

28  shall not unduly delay the proceedings. Failure to proceed

29  under this section shall not constitute failure to exhaust

30  administrative remedies.

31         (3)  CHALLENGING EXISTING RULES; SPECIAL PROVISIONS.--

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 1         (a)  A substantially affected person may seek an

 2  administrative determination of the invalidity of an existing

 3  rule at any time during the existence of the rule. The

 4  petitioner has a burden of proving by a preponderance of the

 5  evidence that the existing rule is an invalid exercise of

 6  delegated legislative authority as to the objections raised.

 7         (4)  CHALLENGING AGENCY STATEMENTS DEFINED AS RULES;

 8  SPECIAL PROVISIONS.--

 9         (e)1.  If, prior to a final hearing to determine

10  whether all or part of any agency statement violates s.

11  120.54(1)(a), an agency publishes, pursuant to s.

12  120.54(3)(a), proposed rules that address the statement, then

13  for purposes of this section, a presumption is created that

14  the agency is acting expeditiously and in good faith to adopt

15  rules that address the statement, and the agency shall be

16  permitted to rely upon the statement or a substantially

17  similar statement as a basis for agency action if the

18  statement meets the requirements of s. 120.57(1)(e).

19         2.  If, prior to the final hearing to determine whether

20  all or part of an agency statement violates s. 120.54(1)(a),

21  an agency publishes a notice of rule development which

22  addresses the statement pursuant to s. 120.54(2), or certifies

23  that such a notice has been transmitted to the Florida

24  Administrative Weekly for publication, then such publication

25  shall constitute good cause for the granting of a stay of the

26  proceedings and a continuance of the final hearing for 30

27  days. If the agency publishes proposed rules within this

28  30-day period or any extension of that period granted by an

29  administrative law judge upon showing of good cause, then the

30  administrative law judge shall place the case in abeyance

31  pending the outcome of rulemaking and any proceedings

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 1  involving challenges to proposed rules pursuant to subsection

 2  (2).

 3         3.  If, following the commencement of the final hearing

 4  and prior to entry of a final order that all or part of an

 5  agency statement violates s. 120.54(1)(a), if an agency

 6  publishes, pursuant to s. 120.54(3)(a), proposed rules that

 7  which address the statement and proceeds expeditiously and in

 8  good faith to adopt rules that which address the statement,

 9  the agency shall be permitted to rely upon the statement or a

10  substantially similar statement as a basis for agency action

11  if the statement meets the requirements of s. 120.57(1)(e).

12         4.  If an agency fails to adopt rules that which

13  address the statement within 180 days after publishing

14  proposed rules, for purposes of this subsection, a presumption

15  is created that the agency is not acting expeditiously and in

16  good faith to adopt rules. If the agency's proposed rules are

17  challenged pursuant to subsection (2), the 180-day period for

18  adoption of rules is tolled until a final order is entered in

19  that proceeding.

20         5.  If the proposed rules addressing the challenged

21  statement are determined to be an invalid exercise of

22  delegated legislative authority as defined in s.

23  120.52(8)(b)-(g), the agency must immediately discontinue

24  reliance on the statement and any substantially similar

25  statement until the rules addressing the subject are properly

26  adopted.

27         Section 4.  Paragraph (o) is added to subsection (2) of

28  section 120.569, Florida Statutes, to read:

29         120.569  Decisions which affect substantial

30  interests.--

31         (2)

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 1         (o)  On the request of any party, the administrative

 2  law judge shall enter an initial scheduling order to

 3  facilitate the just, speedy, and inexpensive determination of

 4  the proceeding. The initial scheduling order shall establish a

 5  discovery period, including a deadline by which all discovery

 6  shall be completed, and the date by which the parties shall

 7  identify expert witnesses and their opinions. The initial

 8  scheduling order also may require the parties to meet and file

 9  a joint report by a date certain.

10         Section 5.  Paragraphs (e), (i), and (k) of subsection

11  (1) of section 120.57, Florida Statutes, are amended to read:

12         120.57  Additional procedures for particular cases.--

13         (1)  ADDITIONAL PROCEDURES APPLICABLE TO HEARINGS

14  INVOLVING DISPUTED ISSUES OF MATERIAL FACT.--

15         (e)1.  Any agency action that determines the

16  substantial interests of a party and that is based on an

17  unadopted rule is subject to de novo review by an

18  administrative law judge.

19         2.  The agency action shall not be presumed valid or

20  invalid.  The agency must demonstrate that the unadopted rule:

21         a.  Is within the powers, functions, and duties

22  delegated by the Legislature or, if the agency is operating

23  pursuant to authority derived from the State Constitution, is

24  within that authority;

25         b.  Does not enlarge, modify, or contravene the

26  specific provisions of law implemented;

27         c.  Is not vague, establishes adequate standards for

28  agency decisions, or does not vest unbridled discretion in the

29  agency;

30         d.  Is not arbitrary or capricious. A rule is arbitrary

31  if it is not supported by logic or the necessary facts; a rule

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 1  is capricious if it is adopted without thought or reason or is

 2  irrational;

 3         e.  Is not being applied to the substantially affected

 4  party without due notice; and

 5         f.  Is supported by competent and substantial evidence;

 6  and

 7         f.g.  Does not impose excessive regulatory costs on the

 8  regulated person, county, or city.

 9         3.  The recommended and final orders in any proceeding

10  shall be governed by the provisions of paragraphs (k) and (l),

11  except that the administrative law judge's determination

12  regarding the unadopted rule shall not be rejected by the

13  agency unless the agency first determines from a review of the

14  complete record, and states with particularity in the order,

15  that such determination is clearly erroneous or does not

16  comply with essential requirements of law.  In any proceeding

17  for review under s. 120.68, if the court finds that the

18  agency's rejection of the determination regarding the

19  unadopted rule does not comport with the provisions of this

20  subparagraph, the agency action shall be set aside and the

21  court shall award to the prevailing party the reasonable costs

22  and a reasonable attorney's fee for the initial proceeding and

23  the proceeding for review.

24         (i)  When, in any proceeding conducted pursuant to this

25  subsection, a dispute of material fact no longer exists, any

26  party may move the administrative law judge to relinquish

27  jurisdiction to the agency. An order relinquishing

28  jurisdiction shall be rendered if the administrative law judge

29  determines from In ruling on such a motion, the administrative

30  law judge may consider the pleadings, depositions, answers to

31  interrogatories, and admissions on file, together with

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 1  supporting and opposing affidavits, if any, that no genuine

 2  issue as to any material fact exists.  If the administrative

 3  law judge enters an order relinquishing jurisdiction, the

 4  agency may promptly conduct a proceeding pursuant to

 5  subsection (2), if appropriate, but the parties may not raise

 6  any issues of disputed fact that could have been raised before

 7  the administrative law judge.  An order entered by an

 8  administrative law judge relinquishing jurisdiction to the

 9  agency based upon a determination that no genuine dispute of

10  material fact exists, need not contain findings of fact,

11  conclusions of law, or a recommended disposition or penalty.

12         (k)  The presiding officer shall complete and submit to

13  the agency and all parties a recommended order consisting of

14  findings of fact, conclusions of law, and recommended

15  disposition or penalty, if applicable, and any other

16  information required by law to be contained in the final

17  order. All proceedings conducted pursuant to this subsection

18  shall be de novo. The agency shall allow each party 15 days in

19  which to submit written exceptions to the recommended order.

20  An agency need not rule on an exception that does not clearly

21  identify the disputed portion of the recommended order by page

22  number or paragraph, that does not identify the legal basis

23  for the exception, or that does not include appropriate and

24  specific citations to the record.

25         Section 6.  Paragraphs (c) and (e) of subsection (1) of

26  section 120.595, Florida Statutes, are amended, and subsection

27  (6) is added to that section, to read:

28         120.595  Attorney's fees.--

29         (1)  CHALLENGES TO AGENCY ACTION PURSUANT TO SECTION

30  120.57(1).--

31  

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 1         (c)  In proceedings pursuant to s. 120.57(1), and upon

 2  motion, the administrative law judge shall determine whether

 3  any party participated in the proceeding for an improper

 4  purpose as defined by this subsection and s. 120.569(2)(e). In

 5  making such determination, the administrative law judge shall

 6  consider whether the nonprevailing adverse party has

 7  participated in two or more other such proceedings involving

 8  the same prevailing party and the same project as an adverse

 9  party and in which such two or more proceedings the

10  nonprevailing adverse party did not establish either the

11  factual or legal merits of its position, and shall consider

12  whether the factual or legal position asserted in the instant

13  proceeding would have been cognizable in the previous

14  proceedings. In such event, it shall be rebuttably presumed

15  that the nonprevailing adverse party participated in the

16  pending proceeding for an improper purpose.

17         (e)  For the purpose of this subsection:

18         1.  "Improper purpose" means participation in a

19  proceeding pursuant to s. 120.57(1) primarily to harass or to

20  cause unnecessary delay or for frivolous purpose or to

21  needlessly increase the cost of litigation, licensing, or

22  securing the approval of an activity.

23         2.  "Costs" has the same meaning as the costs allowed

24  in civil actions in this state as provided in chapter 57.

25         3.  "Nonprevailing adverse party" means a party that

26  has failed to have substantially changed the outcome of the

27  proposed or final agency action which is the subject of a

28  proceeding. In the event that a proceeding results in any

29  substantial modification or condition intended to resolve the

30  matters raised in a party's petition, it shall be determined

31  that the party having raised the issue addressed is not a

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 1  nonprevailing adverse party.  The recommended order shall

 2  state whether the change is substantial for purposes of this

 3  subsection. In no event shall the term "nonprevailing party"

 4  or "prevailing party" be deemed to include any party that has

 5  intervened in a previously existing proceeding to support the

 6  position of an agency.

 7         (6)  OTHER SECTIONS NOT AFFECTED.--Other provisions,

 8  including ss. 57.105 and 57.111, authorize the award of

 9  attorney's fees and costs in administrative proceedings.

10  Nothing in this section shall affect the availability of

11  attorney's fees and costs as provided in those sections.

12         Section 7.  Subsection (1) of section 120.60, Florida

13  Statutes, is amended to read:

14         120.60  Licensing.--

15         (1)  Upon receipt of an application for a license, an

16  agency shall examine the application and, within 30 days after

17  such receipt, notify the applicant of any apparent errors or

18  omissions and request any additional information the agency is

19  permitted by law to require. An agency shall not deny a

20  license for failure to correct an error or omission or to

21  supply additional information unless the agency timely

22  notified the applicant within this 30-day period. An

23  application shall be considered complete upon receipt of all

24  requested information and correction of any error or omission

25  for which the applicant was timely notified or when the time

26  for such notification has expired. Every application for a

27  license shall be approved or denied within 90 days after

28  receipt of a completed application unless a shorter period of

29  time for agency action is provided by law.  The 90-day time

30  period shall be tolled by the initiation of a proceeding under

31  ss. 120.569 and 120.57. Any An application for a license that

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 1  is not must be approved or denied within the 90-day or shorter

 2  time period, within 15 days after the conclusion of a public

 3  hearing held on the application, or within 45 days after a

 4  recommended order is submitted to the agency and the parties,

 5  whichever action and timeframe is latest and applicable, is

 6  considered approved unless the recommended order recommends

 7  that the agency deny the license. Subject to the satisfactory

 8  completion of an examination if required as a prerequisite to

 9  licensure, any license that is considered approved shall be

10  issued and may include such reasonable conditions as are

11  authorized by law. Any applicant for licensure seeking to

12  claim licensure by default under this subsection shall notify

13  the agency clerk of the licensing agency, in writing, of the

14  intent to rely upon the default license provision of this

15  subsection, and shall not take any action based upon the

16  default license until after receipt of such notice by the

17  agency clerk later. The agency must approve any application

18  for a license or for an examination required for licensure if

19  the agency has not approved or denied the application within

20  the time periods prescribed by this subsection.

21         Section 8.  Subsection (9) of section 120.68, Florida

22  Statutes, is amended to read:

23         120.68  Judicial review.--

24         (9)  No petition challenging an agency rule as an

25  invalid exercise of delegated legislative authority shall be

26  instituted pursuant to this section, except to review an order

27  entered pursuant to a proceeding under s. 120.56 or an

28  agency's findings of immediate danger, necessity, and

29  procedural fairness prerequisite to the adoption of an

30  emergency rule pursuant to s. 120.54(4), unless the sole issue

31  

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 1  presented by the petition is the constitutionality of a rule

 2  and there are no disputed issues of fact.

 3         Section 9.  Present subsections (5) and (6) of section

 4  57.105, Florida Statutes, as amended by chapter 2002-77, Laws

 5  of Florida, are renumbered as subsections (6) and (7),

 6  respectively, and a new subsection (5) is added to that

 7  section, to read:

 8         57.105  Attorney's fee; sanctions for raising

 9  unsupported claims or defenses; service of motions; damages

10  for delay of litigation.--

11         (5)  In administrative proceedings under chapter 120,

12  an administrative law judge shall award a reasonable

13  attorney's fee and damages to be paid to the prevailing party

14  in equal amounts by the losing party and a losing party's

15  attorney or qualified representative in the same manner and

16  upon the same basis as provided in subsections (1)-(4). Such

17  award shall be a final order subject to judicial review

18  pursuant to s. 120.68. If the losing party is an agency as

19  defined in s. 120.52(1), the award to the prevailing party

20  shall be against and paid by the agency. A voluntary dismissal

21  by a nonprevailing party does not divest the administrative

22  law judge of jurisdiction to make the award described in this

23  subsection.

24         Section 10.  Paragraph (d) of subsection (4) of section

25  57.111, Florida Statutes, is amended to read:

26         57.111  Civil actions and administrative proceedings

27  initiated by state agencies; attorneys' fees and costs.--

28         (4)

29         (d)  The court, or the administrative law judge in the

30  case of a proceeding under chapter 120, shall promptly conduct

31  an evidentiary hearing on the application for an award of

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 1  attorney's fees and shall issue a judgment, or a final order

 2  in the case of an administrative law judge.  The final order

 3  of an administrative law judge is reviewable in accordance

 4  with the provisions of s. 120.68.  If the court affirms the

 5  award of attorney's fees and costs in whole or in part, it

 6  may, in its discretion, award additional attorney's fees and

 7  costs for the appeal.

 8         1.  No award of attorney's fees and costs shall be made

 9  in any case in which the state agency was a nominal party.

10         2.  No award of attorney's fees and costs for an action

11  initiated by a state agency shall exceed $50,000 $15,000.

12         Section 11.  This act shall take effect upon becoming a

13  law.

14  

15          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
16                       Senate Bill CS/1584

17                                 

18  Provides that the administrative law judge retains
    jurisdiction for purposes of awarding attorney fees under s.
19  57.105, F.S., upon the voluntary dismissal of an action by a
    non-prevailing party.
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