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eThekwini
South Africa

Scheduled Activities By-law, 2020

To provide measures for the prevention, minimisation and management of environmental and human health impacts likely to arise from premises from which certain trades, occupations, businesses, activities or processes are undertaken; to prohibit certain activities or conduct in order to ensure and promote a healthy environment; to provide for the repeal of laws and savings; and to provide for matters incidental thereto.

Preamble

WHEREAS the Municipality has competence in terms of Part B of Schedule 4 of the Constitution relating to air pollution, building regulations, municipal health services; trading regulations, and has the competence in terms of Part B of Schedule 5 of the Constitution relating to the control of public nuisances and noise pollution;WHEREAS everyone has the right to an environment that is not harmful to their health or well-being in terms of Section 24(a) of the Constitution;WHEREAS the Municipality has as one of its objects in terms of Section 152 (d) of the Constitution, the promotion of a safe and healthy environment;AND WHEREAS there is a need to develop legislation to deal with the prevention, minimisation or management of environmental and human health impacts or nuisances arising or likely to arise directly or indirectly from premises from which certain trades, occupations, businesses, activities or processes are undertaken;NOW THEREFORE The Municipal Council of the eThekwini Metropolitan Municipality, acting in terms of section 156 read with Part B of Schedule 4 and Part B of Schedule 5 of the Constitution of the Republic of South Africa, and read with section 11 of the Local Government: Municipal Systems Act, 2000 (Act No. 32 of 2000), hereby makes the following By-law:

Chapter 1
Interpretation

1. Definitions

In this By-law, unless the context indicates otherwise -"applicable legislation" means any legislation, including any By-law of the Municipality, and any regulations or determinations made in terms of any legislation, dealing with or relating to the control, management or mitigation of environmental and human health impacts associated with a scheduled activity in terms of this By-law,which includes, but is not limited to -(a)Occupational Health and Safety Act, 1993 (Act No. 85 of 1993);(b)Hazardous Substances Act, 1973 (Act No. 15 of 1973);(c)National Building Regulations and Standards Act, 1977 (Act No. 103 of 1977);(d)National Environmental Management Act, 1998 (Act No. 107 of 1998);(e)National Environmental Management: Air Quality Act, 2004 (Act No. 39 of 2004);(f)National Environmental Management: Integrated Coastal Management Act, 2008 (Act No. 24 of 2008);(g)National Environmental Management: Waste Act, 2008 (Act No. 59 of 2008);(h)National Health Act, 2003 (Act No. 61 of 2003);(i)KwaZulu-Natal Planning and Development Act, 2008 (Act No. 6 of 2008);(j)Spatial Planning and Land Use Management Act, 2013 (Act No. 16 of 2013);(k)Disaster Management Act, 2002 (Act No. 57 of 2002);(l)National Environmental Management: Biodiversity Act, 2004 (Act No. 10 of 2004); and(m)National Water Act, 1998 (Act No. 36 of 1998);"authorised official" means a person authorised to implement the provisions of this By-law, including but not limited to -(a)peace officers as contemplated in section 334 of the Criminal Procedure Act, 1977 (Act No. 51 of 1977);(b)municipal or metropolitan police officers as contemplated in the South African Police Service Act, 1995 (Act No. 68 of 1995); and(c)such employees, agents, delegated nominees, representatives and service providers of the Municipality as are specifically authorised by the Municipality in this regard: Provided that for the purposes of search and seizure, where such person is not a peace officer, such person must be accompanied by a peace officer;"Constitution" means the Constitution of the Republic of South Africa, 1996;"Council" or "Municipal Council" means the eThekwini Municipal Council, a municipal council referred to in section 157(1) of the Constitution;"incident" means an unexpected sudden occurrence causing or likely to cause damage to the environment or the health of any person or the public, and includes a major emission, fire, explosion, spillage or release of hazardous substances or objects;"Municipality" means eThekwini Municipality, a category A municipality as envisaged in terms of section 155(1) of the Constitution;"municipal manager" means a person appointed in terms of section 54A of the Municipal Systems Act, 2000 (Act No. 32 of 2000) as the head of administration of the municipal council;"nuisance" includes any activity, condition, situation, premises or thing which, on account of effluent, vapours, chemical effluvia, odours, noise, vibration, radiation, refuse, waste products, dirt, chemical or biochemical material, microbial infection, vermin, vegetation, overcrowding, lack of proper general hygiene, ventilation, lighting, design, situation or on account of any other cause or practise whatsoever-(a)causes or has the effect of or potential to cause a health or environmental risk;(b)causes or has the effect of or potential to cause any significant nuisance, damage, annoyance, inconvenience or discomfort to the public or the environment; or(c)affects or has the potential to affect the well being of a person or community;"person" includes any sphere of government, natural person or juristic person;"premises" means any building or any other structure, together with the land on which it is situated and the adjoining land used in connection therewith and any land without buildings or tents, and includes any vehicle or conveyance;"responsible person" means the owner, occupier or person in charge of the premises;"scheduled activity" means the commencement or carrying on, or causing or permitting to be commenced with or carried on in any premises or elsewhere in the Municipality, of any of the trades, businesses, occupations, callings, activities or processes listed in Schedule 1 to this By-law, and includes any erection of or extension, addition or alteration to, any building, structure, plant or works used or for the purpose of using them in connection with any such trade, business, occupation, calling, activity or process; and"Scheduled Activity Permit" means a permit issued in terms of Section 5 of this By-law and "permit" shall have a corresponding meaning.

2. Interpretation of By-law

If there is a conflict of interpretation between the English version of this By-law and a translated version, the English version prevails.

Chapter 2
Objects of By-law

3. Objects of By-law

The objects of this By-law are to-(a)regulate the commencement or carrying on of certain activities, occupations, callings, businesses, conduct, processes, or trades which, owing to their nature, are likely to impact on human or environmental health;(b)provide measures for managing, controlling and minimising any impact on human or environmental health or any nuisance arising or likely to arise from any scheduled activity as contemplated in this By-law; and(c)provide penalties for the breach of its provisions.

Chapter 3
Application

4. Application of By-law

This By-law applies to all areas which fall under the jurisdiction of the eThekwini Municipality and is binding on all persons to the extent applicable.

Chapter 4
Scheduled activities

5. Application for a permit

(1)No person may -(a)commence, carry on, or cause or permit to be commenced with or carried on in any premises; or(b)erect, extend or add to any building, plant or works used, or for the purpose of using them, in connection with,any one or more of the scheduled activities listed in Schedule 1 to this By-law, without the written permission of the Municipality.
(2)An application for a Scheduled Activity Permit contemplated in subsection (1) must be on a prescribed form and upon payment of a prescribed fee, and accompanied by-(a)a block plan, drawn to a scale not smaller than 1: 1 000 showing -(i)the position of the premises, and all dwellings, factories and other premises within a 1 kilometer radius from the boundary of the proposed premises, the radius of which the Municipality has the discretion to change; and(ii)the use to which any such premises are put;(b)a plan and sections to scale of 1: 100 of the building proposed to be erected and used;(c)particulars as to the-(i)nature of the trade, business, occupation, calling, activity or process to be conducted;(ii)raw materials to be dealt with;(iii)products to be produced;(iv)services to be offered; and(v)volume, composition, and nature of all production wastes requiring disposal;(d)particulars of the plant to be installed and the vehicles or other means of transportation to be used, including the transportation of waste materials;(e)particulars, with any necessary explanatory drawings of the means proposed to be adopted for the prevention and disposal of, and to prevent an environmental or human health impact or nuisance arising from, atmospheric pollutants, effluent, stormwater, waste material, insect infestation, refuse, abnormal working environment, noise or vibrations;(f)documentary evidence that applicable legislation relating to the control, management or mitigation of nuisances associated with a scheduled activity in terms of Schedule 1 to this By-law, have been or are being, complied with;(g)documentary evidence that the premises are suitably zoned to allow the carrying out of the proposed activity;(h)particulars of and circumstances, due to the nature of the trade being carried out, which could cause a hazard to employees or the public at large; and(i)any other information or documentation which in the opinion of the Municipality is necessary for the purpose of considering the application.
(3)The applicant may give details showing that any mitigation measures proposed by the applicant for the purpose of preventing, minimising or managing any environmental or human health impact or any nuisance, or any mandatory mitigation measures in terms of any applicable legislation in respect of the proposed activity, are sufficient to allow the Municipality to grant an authorisation contemplated in this section.
(4)The permission contemplated in this section may not be granted if-(a)the premises are not suitably zoned in terms of sub-paragraph (2)(g);(b)any application for rezoning or similar authorisation has been made for the premises and is outstanding; or(c)no approval in terms of the National Building Regulations and Building Standards Act for the building or occupancy classification appropriate to the scheduled activity applied for exists.
(5)The granting of permission under this By-law must in all cases be conditional on the proper construction, maintenance and use of the buildings, premises, works, and the plant apparatus therein and on the effective minimisation of any environmental or human health impacts or nuisance.
(6)A permit granted in terms of this By-law is applicable only in respect of activities identified in the application and the permit.
(7)A permit will only be valid for a period of 5 years, and on expiry thereof a new application must be submitted.
(8)A new application in terms of subsection (7) must be submitted 60 days prior to the expiry of the permit.
(9)The Municipality may upon a written request by a responsible person amend a permit to include new or additional activities, or direct that a new application for new or additional activities as aforesaid must be made.
(10)The Municipality may in writing require any person who deals in any manner with a scheduled activity to apply for a review or variation of the permit conditions if the Municipality reasonably believes that additional scheduled activities other than the activities identified in the application and the permit are being carried out.
(11)The Municipality may in writing require any person who deals with an activity which is not listed under schedule 1 to submit an application if it reasonably believes that such activity-(a)has the potential to negatively impact on environmental or human health; or(b)is causing or is likely to cause a nuisance by activities emanating from the trading premises,

6. Affected persons

(1)Except where otherwise permitted by the Municipality, the applicant must-(a)cause a notice in the form approved by the Municipality, to be published in a local English and isiZulu daily newspaper, circulating in the area in which the premises, for which a permit is sought, is located;(b)affix a notice board with wording as approved by the Municipality at a place visible and accessible by the public in the premises where the activity to which the application relates is to be undertaken; and(c)notify any person interested or affected by such application.
(2)A notice contemplated in subsection (1) must state that any person may submit a written representation or objection to the application in the manner and form set out in the notice or publication.
(3)A notice contemplated in subsection (1) must be published at least 20 days prior to the date on which the application is lodged and the complete tear sheet of the newspaper containing the notice must accompany the application.
(4)Any person intending to make any representation on, or to object to, the application may do so in writing within 14 days of the date of publication, and address any such representation or objection to the Municipality for the attention of an official mentioned in the publication.

7. Decision of Municipality

(1)The Municipality must grant or refuse an application made in terms of section 5 within 60 days of the date on which the Municipality has received all information, particulars or documentation required or requested in order to consider the application.
(2)Before granting an application in terms of subsection (1), the Municipality must be satisfied that-(a)the environmental or human health impacts of any activity, occupation, calling, businesses, conduct, processes, or trades will be managed to the satisfaction of the Municipality and in compliance with recognised statutory limits;(b)no objection to the application has been lodged or that notwithstanding any objection, no significant nuisance is likely to arise or occur from an activity proposed by the applicant; and(c)any mitigation measures proposed by the applicant or mandatory mitigation measures in terms of any applicable legislation in respect of an activity proposed by the applicant, are sufficient for the purpose of preventing, minimising or managing any nuisance emanating from the premises.
(3)The Municipality may grant an approval subject to conditions.
(4)The Municipality must, within 20 days of its decision notify in writing the applicant and any objector to the application, of its decision.
(5)If the application is refused, the applicant may in writing, within 20 days of receiving notification of the decision, request written reasons for the refusal of the application.
(6)The written reasons requested in terms of subsection (5) must be furnished to the applicant within 20 days of receipt of his or her written request.
(7)The Municipality must, if it is unable to make a decision on the application within the time specified in subsection (1), notify the applicant in writing of any such delay and provide the reasons thereof, together with an indication as to the date when a decision on the application can be expected.

Chapter 5
Compliance and enforcement

8. Duty of care

(1)The responsible person, where one or more scheduled activities are carried out on a premises, whether or not permission has been granted in terms of section 5 for any such activities, must take reasonable measures to prevent a negative environmental or human health impact or nuisance from occurring, continuing or recurring.
(2)In so far as a negative environmental and human health impact or any nuisance is in any way authorised by law and cannot reasonably be avoided or stopped, the responsible person must take reasonable measures to minimise and manage such nuisance in terms of any applicable legislation, and such measures must be done to the satisfaction of the Municipality.
(3)The responsible person must-(a)investigate, assess and evaluate the nature, extent and frequency of any current negative environmental or human health impact or potential nuisance;(b)inform and educate employees about the current and potential environmental or human health impact or nuisance arising from their work and the manner in which their tasks must be performed in order to avoid or minimise such impact or nuisance;(c)modify, manage or control any act, activity or process causing such impact or nuisance, in order to eliminate, and where that is impossible, to minimise the negative impact or nuisance; and(d)remedy the effects of such impact or nuisance caused to the extent necessary and practicable.
(4)The owner or occupier of premises where an incident occurred in the course of carrying out a scheduled activity or which is in any manner connected with a scheduled activity, must as soon as reasonably practicable after knowledge of the incident(a)take all reasonable measures to contain and minimise the effects and risks of the incident to the public;(b)undertake remedial or clean-up procedures; and(c)assess the immediate and long-term effects of the incident on the health and well-being of the public and the environment.
(5)Upon ceasing operations and activities on the trading premises, the owner or occupier of the premises must -(a)submit a rehabilitation plan to the Municipality; and(b)on approval of the plan by the Municipality, commence with the rehabilitation of the premises as per the approved plan.

9. Compliance notices

(1)The Municipality may issue a compliance notice in the prescribed form if it has reasonable grounds to believe that a person has not complied—(a)with a provision of this By-law; or(b)with a condition of the permit issued in terms of this By-law.
(2)A compliance notice must include—(a)details of the conduct, activity, condition or situation constituting non-compliance;(b)the steps the person must take to comply with this By-law or conditions of the permit and the time period within which those steps must be taken; and(c)the procedure to be followed in lodging an objection to the compliance notice.
(3)The Municipality may, on good cause shown, vary a compliance notice and extend the period within which the person must comply with the notice.
(4)A person who receives a compliance notice must comply with that notice within the time period stipulated in the notice unless the Municipality has agreed to suspend the operation of the compliance notice.
(5)If a person fails to take steps stipulated in the compliance notice, the Municipality may -(a)in the case of a person who is violating any condition of a permit-(i)by notice in writing, suspend or withdraw any permit granted in terms of this By-law;(ii)apply for an order of court to close down any activity or process which constitutes a violation of the permit; and(iii)cause the responsible person to be prosecuted for an offence in terms of this By-law; or(b)in the case of a person who has not been issued with a permit-(i)apply for an order of court to close down any activity or process which constitutes a scheduled activity in terms of this By-law; and(ii)cause the responsible person to be prosecuted for an offence in terms of this By-law.
(6)Where the Municipality believes that there is imminent or irreversible threat of harm to the environment or the health, safety or well-being of any person or the public as a result of any scheduled activity carried out on premises as contemplated in this By-law, the Municipality may take urgent action to remedy the situation and dispense with the requirements of subsections (1) to (5).
(7)A compliance notice remains in force until it has been complied with to the satisfaction of the Municipality, and the Municipality has issued a compliance certificate to that effect.
(8)Should a responsible person fail to comply, or inadequately comply with the notice, or if urgent action is needed as contemplated in subsection (6), the Municipality may take reasonable measures to remedy the situation and may recover all costs incurred from the responsible person.
(9)No person shall be entitled to compensation for any loss or damage arising out of any bona fide action or decision by the Municipality or any authorised official in terms of this By-law.

10. Entry into premises

(1)An authorised official may enter any premises if he or she suspects on reasonable grounds that any condition or situation occurring on any such premises constitutes a violation of this By-law and causes or is likely to cause an environmental or human health impact or nuisance.
(2)An authorised official may enter any premises and-(a)conduct any search, inspection, audit or monitoring with or without appointment, in order to ensure compliance with this By-law;(b)take samples of any substance that is relevant to the search, audit, monitoring or inspection;(c)question any person who he or she believes may have information relevant to the search, inspection, audit, monitoring or any purpose which is connected with this By-law;(d)require the person in charge of such premises to produce, for inspection or for the purpose of obtaining copies or extracts thereof or there from, any document that such person is required to maintain in terms of any law or any other document which may assist the authorised official to obtain the required information;(e)examine any books, documents, recordings or electronic data and take extracts there from; and(f)deliver any notice in terms of this By-law.
(3)An authorised official seeking entry into premises in terms of subsection (1) must, immediately before entering the premises in question-(a)audibly announce that he or she is authorised to enter the premises and demand admission to the premises; and(b)notify the person in control of the premises of the purpose of the entry, unless there are reasonable grounds to believe that such announcement or notification might defeat the purpose of the search.
(4)An authorised official who is performing a function under this By-law may ask any question or request any information or documentation which might assist him or her to carry out his or her duties in terms of this By-law.

11. Municipal remedial work and recovery of costs

The Municipality may, to the extent practicable and necessary, act in order to avert or remedy any harm as a result of non-compliance with the provisions of this By-law or any other applicable By-law or legislation, and may recover any associated costs from the owner or the person in control of the premises.

Chapter 6
Offences and penalties

12. Offences

(1)A person commits an offence if he or she-(a)obstructs or hinders in any manner whatsoever an authorised official who is performing a function under this By-law;(b)refuses to provide to an authorised official such information as is required to allow an authorised official to perform a function in terms of this By-law;(c)knowingly gives false or misleading information to an authorised official;(d)unlawfully prevents the owner of any premises, or a person working for the owner, from entering the premises in order to comply with a requirement of this By-law;(e)impersonates an authorised official;(f)contravenes or fails to comply with any provision of this By-law or condition of the permit; or(g)contravenes or fails to comply with any order or notice lawfully issued under this By-law.
(2)A person commits a continuing offence if they continue with an offence after notice has been served on them in terms of this By-law requiring them to cease committing such offence, or after they have been convicted of such offence.

13. Penalties

(1)Any person who is convicted of an offence under this By-law shall be liable to a fine of an amount not exceeding R100 000, or to imprisonment for a period not exceeding two years, or to both such fine and imprisonment.
(2)In the case of a continuing offence, an additional fine of an amount not exceeding R1000 or imprisonment for a period not exceeding 10 days, for each day on which such offence continues or both such fine and imprisonment, will be imposed.

Chapter 7
General provisions

14. Appeals

(1)A person whose rights are affected by a decision taken by the Municipality in terms of this By-law may appeal against that decision in terms of section 62 of the Appeals provision contained in the Local Government: Municipal Systems Act, 2000 (Act No. 32 of 2000) by giving written notice of the appeal and reasons thereof to the municipal manager within 21 days of the date of the notification of the decision.
(2)The municipal manager must promptly submit the appeal to the appropriate appeal authority.
(3)The appeal authority must commence with an appeal within six weeks and decide the appeal within a reasonable period.
(4)The appeal authority must confirm, vary or revoke the decision, but no such variation or revocation of a decision may detract from any rights which may have accrued as a result of the decision.
(5)The appeal authority must furnish written reasons for its decision on all appeal matters.
(6)All appeals lodged are done so in terms of the Local Government: Municipal Systems Act, 2000 (Act No. 32 of 2000) and not in terms of this By-law.
(7)Where a conviction has been affirmed by a court of law and the accused wishes to appeal such conviction, the appeal must take place in terms of the court's appeal process and not in terms of subsections (1) to (5).

15. Delegations

(1)Subject to the Constitution and applicable national and provincial laws, any -(a)power, excluding a power referred to in section 160(2) of the Constitution;(b)function; or(c)dutyconferred, in terms of this By-law, upon the Council, or on any of the Municipality's other political structures, political office bearers, councilors or staff members, may be delegated or sub-delegated by such political structure, political office bearer, councilor, or staff member, to an entity within, or a staff member employed by, the Municipality.
(2)The delegation in terms of subsection (1) must be effected in accordance with the system of delegation adopted by the Council in accordance with section 59(1) of the Local Government: Municipal Systems Act, 2000 (Act No. 32 of 2000), subject to the criteria set out in section 59(2) of said Act.
(3)Any delegation contemplated in this section must be recorded in the Register of Delegations, which must contain information on the -(a)entity or person issuing the delegation or sub-delegation;(b)recipient of the delegation or sub-delegation; and(c)conditions attached to the delegation or sub-delegation.

16. Repeals

The By-laws listed in Schedule 2 to this By-law are hereby repealed to the extent mentioned in the third column of the said Schedule.

17. Transitional provisions

(1)Any person who has permission issued in terms of the-(a)Scheduled Trades and Occupations By-laws for the City of Durban, promulgated under Provincial Notice No. 134 on 22 March 1979; or(b)Offensive Trade Regulations for the Borough of Durban, promulgated under Government Notice No. 2014, published on 15 December 1921,which permission was in effect immediately before the date of promulgation of this By-law, must within 12 months of the date of promulgation of this By-law submit an application for a permit in terms of the provisions of this By-law: Provided that their permit has not expired within that 12 months.
(2)Any person who is undertaking an activity or process which is listed as a scheduled activity in this By-law, but which was not listed in the Schedule of the By-law mentioned in subsection (1) (a) immediately before the date of promulgation of this By-law, must comply with all applicable provisions of this By-law within 12 months of the date of promulgation of this By-law.
(3)Notwithstanding subsection (2), the Municipality may in writing require or allow a person contemplated in subsection (2) to comply with any provision of this By-law at, and within, any time that is, in the Municipality’s opinion, reasonable: Provided that all persons must comply with the provisions of this By-law within 5 years of its promulgation.

18. Short title and commencement

This By-law is called the Scheduled Activities By-law, 2019 and takes effect six months from the date of publication thereof in the Provincial Gazette or on such earlier date as may be determined by the publication of a commencement notice in the Provincial Gazette.

Schedule 1

Scheduled activities or processes

Abattoirs
Acid works
Alkali works
Ammonia works and bulk transportation
Animal and fish products processing, including the manufacture of meal for animal feeding
Asbestos transportation, handling and storage, and the manufacture and bulk-storage of products containing asbestos
Asphalt plant, permanent and mobile
Battery manufacturing, reconditioning and servicing
Bitumen works, including the transportation and operation of mobile bitumen kettles
Breweries
Brick and tile works
Carbon black manufacture
Cement products and pre-mixing works
Ceramic works
Chemical product processing, including any process involving a chemical reaction
Container washing and reconditioning works
Chrome and chromate works including storage and handling of chrome
Coal, charcoal and coke storage and handling
Composting
Crematoria
Distillery
Engineering works
Fertilizer works
Food manufactory
Foundries and metal works
Fungicide manufacture, and bulk-handling, storage and commercial usage of fungicides
Furniture manufacture and re-conditioning
Gas works
Glass-fibre manufacture, storage, moulding and finishing
Glass works
Hazardous substances (as defined in the Hazardous Substances Act, No. 15 of 1973) - manufacture and bulk-blending, transportation and storage.
Hazardous substances include road, rail tanker and isotainer washing and maintenance
Health care risk waste transportation
Herbicide manufacture, and bulk-handling, storage and commercial usage of herbicides
Hide and skin processing
Laundries excluding in-house laundries located within accommodation establishments
Lead works
Manganese storage and handling
Marine food processing
Mattress-maker
Metal products manufacture
Metal buffing, electroplating, enameling and galvanising
Milling
Ore processing works, or handling and storage of ores
Pesticides manufacture, and bulk-handling, store and commercial usage of pesticides
Pigment works
Plastic product works
Power or energy generation
Printing works
Quarrying
Refining
Refuse collection, storage, removal, processing or disposal
Removal of human remains
Rubber moulding or vulcanising
Sand, shot and grit blasting
Sandwinning
Sewage treatment, transportation or disposal
Scrap yard
Ship building
Sludge works
Spray-painting
Stone crushing and dressing works
Stone masonry
Tannery
Teasing or shredding works dealing with coir, flock or textiles
Timber yard and works
Upholsterer
Vegetable oil extraction or processing
Vehicle or vehicle parts manufacturing
Waste material salvaging, collecting, sorting, storing, treating, processing or recycling/reclaiming
Welding works
Wood pulping
Yeast manufacture
Any other activity as determined by the provisions of section 5(10)

Schedule 2

Laws repealed

(in terms of Section 16 of this By-law)

Number and year of law Title Extent of repeal
Provincial Notice No. 134 of 1979 published in Provincial Gazette No. 40991 dated 22 March, 1979. City of Durban Scheduled Trades and Occupations By-laws The whole

History of this By-law

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