File No. 116

House of Representatives, March 19, 2015

The Committee on Environment reported through REP. ALBIS of the 99th Dist., Chairperson of the Committee on the part of the House, that the substitute bill ought to pass.

AN ACT CONCERNING THE USE OF CERTAIN NOISE-MAKING DEVICES FOR AGRICULTURAL PURPOSES.

Be it enacted by the Senate and House of Representatives in General Assembly convened:

Section 1. Section 22-26g of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2015):

(a) No person may use any noise-making device to scare or repel wildlife in order to prevent the damage and destruction of agricultural crops unless such person obtains a permit for each such device from the Commissioner of Agriculture. Notwithstanding any provision of the general statutes or any provision of a municipal ordinance, which ordinance is adopted after June 21, 1967, a person engaged in agriculture may make written application to the commissioner for such a permit on forms prescribed by the commissioner. The commissioner, or [his] the commissioner's designee, [shall] may make an on-site inspection prior to making a final determination regarding an application for such permit. Prior to the issuance of such permit, the applicant shall provide evidence of the need for protection of [his] the applicant's crops, [and] a description of other methods employed to prevent crop damage and an estimate of the potential loss, as a percentage of the crop, attributed to wildlife damage. The term of the permit shall be for the period for which protection of the crops specified in the application is necessary.

(b) The application shall state (1) the type of noise-making device to be used, (2) the location of the farm where such device will be used, (3) the locations on the farm where such device will be used, (4) the animal causing damage, (5) the crops to be protected, (6) the hours and interval of operation, (7) the period for which protection is needed, and (8) the name, address and signature of applicant or landowner, if different.

(c) The commissioner may authorize the use of the following in permits issued under this section: Propane exploders, acetylene exploders, carbide exploders, electronic noisemakers and similar noise-making devices. The use of fire crackers and similar explosives is prohibited. No permit shall be issued for the use of any noise-making device for a property of less than five acres in area or for use within five hundred feet of any dwelling, other than the dwelling of the applicant for such permit, without the written consent of the occupants of such dwelling.

(d) No person may operate or allow the operation of noise-making devices pursuant to this section in excess of 80 dB peak sound pressure level from ten o'clock p.m. to seven o'clock a.m. local time or in excess of 100 dB peak sound pressure level from seven o'clock a.m. to ten o'clock p.m. local time. Such sound level shall be as measured from the property line of any receptor residential property. Any noise-making device authorized pursuant to this section shall be operated in accordance with the recommendations of the manufacturer of such device and any written conditions contained in the permit that the commissioner or the commissioner's designee deems appropriate.

(e) No noise-making device shall be used in any manner or in any location that may endanger public safety. Any noise-making device permitted under this section to repel or scare birds may only be operated from one-half hour before sunrise to one-half hour after sunset. Any such noise-making device used to repel or scare nocturnal or crepuscular marauding wild animals may be operated between sunset and sunrise.

(f) Any noise-making device used pursuant to this section shall bear a weather-resistant tag that shall state the name, address and phone number of the operator of the noise-making device. At all times, such tag shall be securely affixed to the noise-making device and shall be legible.

[(f)] (g) If the legislative body of any municipality adopts a resolution [which] that states that there is undue hardship on nearby residents as a result of the use of any device permitted under this section, and [which] that requests that the commissioner deny or cancel the right to use such device, the commissioner, in accordance with the provisions of chapter 54, may deny or cancel a permit to use such device if [he] the commissioner determines that its use creates, or will create, an undue hardship on nearby residents. In making any such decision, the commissioner may consult with experts in wildlife damage to crops and any county or state-wide advisory group [he] the commissioner deems appropriate.

[(g)] (h) The Commissioner of Agriculture, [may revoke a permit issued pursuant to this section] or the commissioner's designee, shall issue a warning notice for any violation of any provision of this section. [provided the] The commissioner shall revoke [such] a permit issued pursuant to this section for not less than one year upon the third violation of this section in any twelve-month period by [any] such permittee. Any person who has his or her permit revoked by the commissioner or the commissioner's designee may appeal such order provided such person requests a hearing, in writing, to the commissioner and such request is received by the commissioner not later than fifteen days after the date of such order. During any such appeal, such order shall remain in effect until a final decision is rendered. The commissioner may appoint a hearing officer to hear such appeal and render a final decision, as the commissioner deems appropriate. In any such appeal, the only consideration shall be whether the violation or violations alleged actually occurred.

(i) Any person who operates a noise-making device without a permit, during an appeal period for a permit revocation, or after a permit is revoked shall be fined one hundred dollars for the first offense and three hundred dollars for a second and any subsequent offense. Each noise-making device operated in violation of this section shall constitute a separate offense.

Sec. 2. Subsection (b) of section 51-164n of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2015):

(b) Notwithstanding any provision of the general statutes, any person who is alleged to have committed (1) a violation under the provisions of section 1-9, 1-10, 1-11, 4b-13, 7-13, 7-14, 7-35, 7-41, 7-83, 7-283, 7-325, 7-393, 8-12, 8-25, 8-27, 9-63, 9-322, 9-350, 10-193, 10-197, 10-198, 10-230, 10-251, 10-254, 12-52, 12-170aa, 12-292, 12-314b or 12-326g, subdivision (4) of section 12-408, subdivision (3), (5) or (6) of section 12-411, section 12-435c, 12-476a, 12-476b, 12-487, 13a-71, 13a-107, 13a-113, 13a-114, 13a-115, 13a-117b, 13a-123, 13a-124, 13a-139, 13a-140, 13a-143b, 13a-247 or 13a-253, subsection (f) of section 13b-42, section 13b-90, 13b-221, 13b-292, 13b-336, 13b-337, 13b-338, 13b-410a, 13b-410b or 13b-410c, subsection (a), (b) or (c) of section 13b-412, section 13b-414, subsection (d) of section 14-12, section 14-20a or 14-27a, subsection (e) of section 14-34a, subsection (d) of section 14-35, section 14-43, 14-49, 14-50a or 14-58, subsection (b) of section 14-66, section 14-66a, 14-66b or 14-67a, subsection (g) of section 14-80, subsection (f) of section 14-80h, section 14-97a, 14-100b, 14-103a, 14-106a, 14-106c, 14-146, 14-152, 14-153 or 14-163b, a first violation as specified in subsection (f) of section 14-164i, section 14-219 as specified in subsection (e) of said section, subdivision (1) of section 14-223a, section 14-240, 14-249, 14-250 or 14-253a, subsection (a) of section 14-261a, section 14-262, 14-264, 14-267a, 14-269, 14-270, 14-275a, 14-278 or 14-279, subsection (e) or (h) of section 14-283, section 14-291, 14-293b, 14-296aa, 14-319, 14-320, 14-321, 14-325a, 14-326, 14-330 or 14-332a, subdivision (1), (2) or (3) of section 14-386a, section 15-25 or 15-33, subdivision (1) of section 15-97, subsection (a) of section 15-115, section 16-44, 16-256e, 16a-15 or 16a-22, subsection (a) or (b) of section 16a-22h, section 17a-24, 17a-145, 17a-149, 17a-152, 17a-465, 17a-642, 17b-124, 17b-131, 17b-137 or 17b-734, subsection (b) of section 17b-736, section 19a-30, 19a-33, 19a-39 or 19a-87, subsection (b) of section 19a-87a, section 19a-91, 19a-105, 19a-107, 19a-113, 19a-215, 19a-219, 19a-222, 19a-224, 19a-286, 19a-287, 19a-297, 19a-301, 19a-309, 19a-335, 19a-336, 19a-338, 19a-339, 19a-340, 19a-425, 19a-502, 20-7a, 20-14, 20-158, 20-231, 20-249, 20-257, 20-265, 20-324e, 20-341l, 20-366, 20-597, 20-608, 20-610, 21-1, 21-30, 21-38, 21-39, 21-43, 21-47, 21-48, 21-63 or 21-76a, subdivision (1) of section 21a-19, section 21a-21, subdivision (1) of subsection (b) of section 21a-25, section 21a-26 or 21a-30, subsection (a) of section 21a-37, section 21a-46, 21a-61, 21a-63 or 21a-77, subsection (b) of section 21a-79, section 21a-85 or 21a-154, subdivision (1) of subsection (a) of section 21a-159, subsection (a) of section 21a-279a, section 22-12b, 22-13, 22-14, 22-15, 22-16, 22-26g, as amended by this act, 22-29, 22-34, 22-35, 22-36, 22-38, 22-39, 22-39a, 22-39b, 22-39c, 22-39d, 22-39e, 22-49, 22-54, 22-89, 22-90, 22-98, 22-99, 22-100, 22-111o, 22-167, 22-279, 22-280a, 22-318a, 22-320h, 22-324a, 22-326 or 22-342, subsection (b), (e) or (f) of section 22-344, section 22-359, 22-366, 22-391, 22-413, 22-414, 22-415, 22a-66a or 22a-246, subsection (a) of section 22a-250, subsection (e) of section 22a-256h, section 22a-363 or 22a-381d, subsections (c) and (d) of section 22a-381e, section 22a-449, 22a-461, 23-37, 23-38, 23-46 or 23-61b, subsection (a) or subdivision (1) of subsection (c) of section 23-65, section 25-37 or 25-40, subsection (a) of section 25-43, section 25-43d, 25-135, 26-16, 26-18, 26-19, 26-21, 26-31, 26-31c, 26-40, 26-40a, 26-42, 26-49, 26-54, 26-55, 26-56, 26-58 or 26-59, subdivision (1) of subsection (d) of section 26-61, section 26-64, subdivision (1) of section 26-76, section 26-79, 26-87, 26-89, 26-91, 26-94, 26-97, 26-98, 26-104, 26-105, 26-107, 26-117, 26-128, 26-131, 26-132, 26-138 or 26-141, subdivision (1) of section 26-186, section 26-207, 26-215, 26-217 or 26-224a, subdivision (1) of section 26-226, section 26-227, 26-230, 26-232, 26-244, 26-257a, 26-260, 26-276, 26-284, 26-285, 26-286, 26-288, 26-294, 28-13, 29-6a, 29-25, 29-109, 29-143o, 29-143z or 29-156a, subsection (b), (d), (e) or (g) of section 29-161q, section 29-161y or 29-161z, subdivision (1) of section 29-198, section 29-210, 29-243 or 29-277, subsection (c) of section 29-291c, section 29-316, 29-318, 29-381, 30-48a, 30-86a, 31-3, 31-10, 31-11, 31-12, 31-13, 31-14, 31-15, 31-16, 31-18, 31-23, 31-24, 31-25, 31-32, 31-36, 31-38, 31-40, 31-44, 31-47, 31-48, 31-51, 31-52, 31-52a or 31-54, subsection (a) or (c) of section 31-69, section 31-70, 31-74, 31-75, 31-76, 31-76a, 31-89b or 31-134, subsection (i) of section 31-273, section 31-288, subdivision (1) of section 35-20, section 36a-787, 42-230, 45a-283, 45a-450, 45a-634 or 45a-658, subdivision (13) or (14) of section 46a-54, section 46a-59, 46b-22, 46b-24, 46b-34, 47-34a, 47-47, 49-8a, 49-16, 53-133, 53-199, 53-212a, 53-249a, 53-252, 53-264, 53-280, 53-302a, 53-303e, 53-311a, 53-321, 53-322, 53-323, 53-331 or 53-344, subsection (c) of section 53-344b, or section 53-450, or (2) a violation under the provisions of chapter 268, or (3) a violation of any regulation adopted in accordance with the provisions of section 12-484, 12-487 or 13b-410, or (4) a violation of any ordinance, regulation or bylaw of any town, city or borough, except violations of building codes and the health code, for which the penalty exceeds ninety dollars but does not exceed two hundred fifty dollars, unless such town, city or borough has established a payment and hearing procedure for such violation pursuant to section 7-152c, shall follow the procedures set forth in this section.

The following Fiscal Impact Statement and Bill Analysis are prepared for the benefit of the members of the General Assembly, solely for purposes of information, summarization and explanation and do not represent the intent of the General Assembly or either chamber thereof for any purpose. In general, fiscal impacts are based upon a variety of informational sources, including the analyst's professional knowledge. Whenever applicable, agency data is consulted as part of the analysis, however final products do not necessarily reflect an assessment from any specific department.


OFA Fiscal Note

State Impact:

Municipal Impact: None

Explanation

The bill changes requirements for noisemaking devices (used by farmers) to repel wildlife to prevent crop damage. The Department of Agriculture issues permits (at no cost) for these devices and performs on-site inspections of complaints.

The bill creates a fine of either $100 or $300, depending on the nature of the offense, for operating a noisemaking device without a permit. This is anticipated to generate less than $1,000 annually.

The agency's Agricultural Marketing and Inspection Representative handles inspections and enforcement of noise-making devices in addition to their duties in other areas of the agency.

The Out Years

The annualized ongoing fiscal impact identified above would continue into the future subject to the number of violations.

OLR Bill Analysis

sHB 6729

AN ACT CONCERNING THE USE OF CERTAIN NOISE-MAKING DEVICES FOR AGRICULTURAL PURPOSES.

SUMMARY:

This bill adds specific requirements and makes other changes to the law requiring Department of Agriculture (DoAg) permits for the use of noisemaking devices to deter wildlife from damaging crops. By law, these devices include acetylene, carbide, or propane exploders; electronic noisemakers; and similar noisemaking devices.

The bill expands the information a permit applicant must provide to the DoAg commissioner to include an estimate of potential crop loss. It makes optional, rather than mandatory, on-site inspections by the commissioner or his designee before making a final decision on an application.

The bill increases the commissioner's authority to address improper operation. It adds to current law's operation requirements that the devices be (1) operated according to manufacturer recommendations and any commissioner-imposed conditions and (2) labeled with the operator's contact information.

The bill allows the commissioner to consult wildlife experts when deciding to deny or cancel a permit.

It reduces his authority to revoke a permit. Instead of allowing him to revoke one for any violation, he must issue warning notices for violations, and the bill restricts revocation to cases of three violations in a year. It also establishes a procedure to appeal revocation orders.

The bill creates a fine of either $100 or $300, depending on the offense, for operating a device without a permit and allows violators to pay the fine by mail without appearing in court (see COMMENT). It specifies that each device operated in violation of the law is a separate offense.

The bill also makes technical and conforming changes.

EFFECTIVE DATE: October 1, 2015

APPLICATION REQUIREMENTS

By law, permit applicants must provide the commissioner (1) evidence of the need to protect crops and (2) a description of other methods used to prevent crop damage. The bill requires them to also give an estimate of the potential loss, as a percentage of the crop, due to wildlife damage.

The law already requires applicants to provide information about the (1) type of device to be used; (2) location and hours of operation; (3) animal causing damage; and (4) applicant or landowner.

OPERATING REQUIREMENTS

The bill requires noisemaking devices to be operated according to (1) the manufacturers' recommendations and (2) any written conditions in the permit that the commissioner or his designee deem appropriate. It requires each device to have a securely fixed, legible, weather-resistant tag with the operator's name, address, and phone number.

Existing law (1) limits the devices' decibel levels and hours of operation and (2) prohibits use in a way that may endanger the public.

PENALTIES

Permit Denial, Cancellation, or Revocation

Denial or Cancellation. By law, if a municipal legislative body adopts a resolution finding certain noisemakers cause hardship to nearby residents and requests denial or cancellation of the right to use them, the commissioner may deny or cancel a permit. But he must find there is a hardship and the law allows him to consult with county or statewide advisory groups when making the decision. The bill expands the persons with whom the commissioner may consult to include experts in wildlife damage to crops.

Revocation. Current law allows the commissioner to revoke a permit for any violation of the noisemaking device law, and requires him to do so upon a third violation. The bill reduces his authority to revoke permits by (1) requiring him, or his designee, to issue warning notices for violations and (2) limiting mandatory revocation to cases where three violations occur within a 12-month period. By law, and unchanged by the bill, a revocation must be for at least a year.

Under the bill, anyone whose permit is revoked may appeal the order, but the permittee must make a written request to the commissioner for a hearing. The request must be received by the commissioner within 15 days after the order's date.

The bill allows the commissioner to appoint a hearing officer to hear an appeal and give a final decision. The hearing officer may only consider whether the alleged violation occurred. A revocation order remains in effect during an appeal until the officer makes the final decision.

Fines

The bill establishes a fine for operating a noisemaking device (1) without a permit, (2) during a pending appeal to revoke a permit, or (3) after a permit is revoked.

It subjects violators to a $100 fine for a first offense and $300 for second and subsequent offenses. It allows violators to pay the fine without having to appear in court, using the mail-in procedures for infractions and certain violations. But the bill is unclear how the fines will be imposed as the bill requires the commissioner to issue a warning notice for any violation of the noisemaking device law.

COMMENT

Penalty Conflict

The bill contains conflicting provisions in subsections (h) and (i) regarding the penalties for violating the noisemaking device law. One subsection establishes fines for operating without a permit, including a first offense, but the other requires the commissioner to issue warning notices for all violations. Presumably a warning notice would precede a fine.

COMMITTEE ACTION

Environment Committee

Joint Favorable Substitute