SECTION 7.37. Prior Notification Requirements

(a) Except as provided in subsection (n) of this section, the farm operator shall be responsible for meeting prior notification requirements. Responsibility may be transferred by contract to a second party. However, if the effective date of the transfer is unclear, both the farm operator and the second party may be held liable for any violation of these regulations.

(b) All applications of pesticides by ground application equipment, except airblast or mistblowing equipment, are exempted from this section.

(c) The following persons may request prior notification of a pesticide application:

(1) any person who works or resides in a building, house, or other structure located on land adjoining and within 1/4 mile of a field on which pesticides may be applied;

(2) persons in charge of licensed day-care centers, primary and secondary schools, hospitals, inpatient clinics, or nursing homes within 1/4 mile of the field on which pesticides are to be applied. The parent of a primary or secondary school student may for good cause request notification from the department if the person in charge of the school has refused to request notification. If the department determines that notification should be given, the department shall notify the farm operator to give notification to the person in charge of the school; and

(3) any person with chemical hypersensitivities, allergies, or other medical conditions which may be aggravated by pesticide exposure and whose residence or place of employment is within 1/4 mile of the field on which pesticides are to be applied.

(d) Except as provided in subsection (n) of this section, requests for prior notification under this section shall be made in writing to the farm operator, and should include:

(1) the name and address of the person making the request;

(2) one home and business telephone number at which the person making the request can be reached and the hours that such person is normally at each number;

(3) the date of the request;

(4) the location of the field for which the request for notification is being made;

(5) a request to be notified prior to the application of any pesticides to the area described in paragraph (4) of this subsection or the trade name and/or common chemical name of specific pesticides for which prior notification is requested; and

(6) a request to be notified because of a medical condition that may be aggravated by pesticide exposure. Such requests must contain a licensed physician's signed confirmation of the medical condition.

(e) Requests for prior notification should be sent by certified mail. It shall be the responsibility of the person making the request to retain copies of the request and the return receipts of certified letters.

(f) A request for prior notification shall be effective through December 31 of the year that the request is received. A farm operator shall commence notifying a requesting party of scheduled pesticide applications within ten days of receipt of a request for notification. The department may extend the time to begin notifying a requesting party upon a showing of sufficient cause by the farm operator. The department shall notify the requesting party of any such extension.

(g) The following methods may be used for giving notification of a scheduled pesticide application:

(1) Except as provided by subsection (n) of this section if the request for notification is made pursuant to this section, the notification may be made by:

(A) raising a flag/sign;

(i) The EPA WPS warning flag/sign as shown in §7.36 of this chapter (relating to Application of Worker Protection Standard) shall be raised to a height of at least approximately five feet, with the bottom of such flag/sign always at least two feet above the top of the crop, in or about the field to which pesticides are scheduled to be applied so that the flag/sign is located no farther than 650 yards from the nearest property line of any person requesting notification.

(ii) In the event of unusually tall crops, such as citrus, corn, or sugar cane, or limited access fields, the farm operator may raise a flag/sign at a distance greater than 650 yards from the nearest property line of the party requesting notification on a permanent pole to a height visible from the property line of the requesting party.

(iii) The telephone number of the farm operator shall be on or near the flag/sign, and the flag/sign shall be raised on the border of the field at a location to which the public has access for the purpose of reading the telephone number. The farm operator shall provide the name of the pesticide and the intended date and approximate time of the scheduled application when requested by the requesting party;

(B) giving notification in writing, in person, or by telephone in English or, when appropriate, Spanish; or

(C) other means mutually agreed upon by both parties. This agreement must be in writing and a copy filed with the department.

(2) If the request for notification is made pursuant to a medical condition, notification must be given in person or by telephone in English or, when appropriate, Spanish.

(A) If the farm operator is unable to reach a person entitled to notification under this paragraph after making reasonable efforts, the farm operator may immediately notify the department by telephone of the following information:

(i) the name and telephone number(s) of the farm operator;

(ii) the name and telephone number(s) of the requesting party;

(iii) the location of the field scheduled to be treated;

(iv) the intended date and approximate time of the pesticide application; and

(v) the trade and common chemical name of the pesticide.

(B) The department shall maintain a record of the information provided by the farm operator for the duration of the notification request.

(C) If the farm operator telephones the department between 8:00 a.m. and 5:00 p.m., Monday through Friday, the department shall immediately attempt to telephone the requesting party and give notification of the scheduled application. A record showing the date and time of all such attempts shall be maintained by the department for the duration of the notification request.

(3) If the request for notification is made pursuant to subsection (c)(2) of this section, notification may be given in person or by telephone in English or, when appropriate, Spanish. Alternatively, if mutually agreed by the farm operator and the person in charge of any such facility, notification may be given by posting a flag/sign at a designated location.

(4) No request is necessary for prior notification of camps owned, managed, or controlled by the farm operator and located on the field or licensed farm labor camps located on the field or within 1/4 mile of the field on which pesticides are to be applied. Notification shall be provided by telephone or in person to the head of each household. Alternatively, the farm operator may provide notification in writing by placing a written notice on a bulletin board to which the camp has access.

(5) A farm operator may notify the department that the farm operator has given or been unable to give a notification by telephone or in person to establish a record of such notice. The department shall maintain a record of such notifications. It is a violation of this section to provide false information to the department about efforts to reach a requesting party or about failure to receive such notification.

(h) Notice given in writing, in person, or by telephone shall include:

(1) the intended date and approximate time of application;

(2) the trade and common chemical name, if requested, of the pesticide to be applied; and

(3) the location of the field on which the application is to be made.

(i) Notice shall be given not later than 24 hours prior to a scheduled pesticide application.

(1) Notice shall be deemed given pursuant to subsection (g)(1) and (3) of this section:

(A) at the time of delivery of notification to the requesting person or at the time of delivery of notification to the address provided in the request for prior notification;

(B) when the required flag/sign is raised; or

(C) as mutually agreed upon pursuant to an agreement authorized by subsection (g)(1)(C) of this section.

(2) Notice shall be deemed given pursuant to subsection (g)(4) of this section:

(A) at the time of delivery of notification in person or by telephone; or

(B) after the farm operator has made reasonable efforts to notify the requesting party by telephoning the requesting party at the number(s) provided during the time(s) specified in the written request.

(j) In the event an immediate application is required and notice cannot be given as required by subsection (i) of this section, such notice need not be given. Notice of an emergency application shall be given:

(1) by the method selected pursuant to subsections (g)(1), (3) and (4) of this section as soon as reasonably possible before the application; or

(2) by telephone or in person to medically affected persons as soon as reasonably possible before the application. In no event shall notice of an emergency application to medically affected persons be given less than one hour before the scheduled application. However, an emergency application need not be postponed if after reasonable efforts by the farm operator actual notice cannot be given.

(k) Flags/signs raised under this section should be removed or lowered within 24 hours after the reentry interval expires. However, in no event shall such flags/signs be left posted for more than 72 hours after the reentry interval has expired. In the event that a pesticide application is not made when scheduled, the flag/sign may be left posted until after the reentry interval has expired.

(l) A person who has requested notice of a pesticide application under this section shall notify the farm operator promptly and in writing of any change of address or telephone number. Notice need not be given at any vacant structure or premises, or at any structure or premises which is not the place of residence or business of a person entitled to notice under this section.

(m) All complaints filed under this section shall be reviewed and investigated by the department in the same manner as any other complaints filed under this chapter.

(n) The Texas Boll Weevil Eradication Foundation (foundation) or other areawide pest control programs sponsored by a governmental entity must adhere to the following:

(1) For applications made by the foundation as part of its boll weevil eradication program or other areawide pest control program sponsored by a governmental entity, the entity making the application or causing the application to be made is responsible for meeting prior notification requirements of this subsection. The farm operator is responsible for accepting requests for and providing prior notification in accordance with this section for applications made by the farm operator.

(2) A request for notification of an application made by an entity covered by this subsection may be made by those persons listed in subsection (c) of this section. No request is necessary for prior notification of farm labor camps owned, managed, or controlled by a farm operator and located on or within 1/4 mile of a field on which pesticides are to be applied by the foundation or other entity; provided that the farm operator is responsible for notifying the foundation or other entity of the presence of such labor camps.

(3) Requests made under this section shall be in writing to the foundation or other entity or the farm operator and shall include the information required by subsection (d) of this section.

(4) The farm operator is responsible for notifying the foundation or other entity covered by this subsection of any requests for prior notification received by the farm operator relating to an application that will be made or caused to be made by the foundation or other entity. The information must be provided to the foundation or other entity within 24 hours of its receipt by the farm operator. The information may be provided:

(A) by telephone at a telephone number obtained from the department;

(B) by mailing the written request to the foundation or other entity at an address obtained from the department; or

(C) by any other reasonable means, so long as the information is forwarded within 24 hours of its receipt.

(5) Prior to making the first application in each calendar year, the foundation or other entity shall request that the farm operator notify it of any requests for prior notification already in effect for property on which the foundation or other entity will be making applications and of any future requests for prior notification on that property.

(6) A request for prior notification under this subsection shall be in effect through December 31 of the year that the request is received. The foundation or other entity shall begin notifying the requesting party of scheduled pesticide applications within 10 days of receipt of a request for notification.

(A) Notification shall be provided as follows:

(i) Notification may be given in writing, by raising a flag/sign in the manner provided in subsection (g)(1)(A) of this section, in person, by telephone in English or, when appropriate, Spanish, or by other means mutually agreed upon by the requesting party and the foundation or other entity. This agreement must be in writing and a copy filed with the department. For purposes of providing notice to medically affected persons or to licensed day care centers, primary and secondary schools, hospitals, inpatient clinics and nursing homes, "notification in writing" means other than by mail such as by posting a written notice on the requester's front door or at the requester's place of business.

(ii) If the foundation or other entity is unable to reach a person entitled to notification under this section after making reasonable efforts, it may immediately notify the department by telephone of the following information:

(I) the name and telephone number(s) of the foundation or other entity;

(II) the name and telephone number(s) of the requesting party;

(III) the location of the field scheduled to be treated;

(IV) the intended date and approximate time of the pesticide application; and

(V) the trade and common chemical name of the pesticide.

(iii) The department shall maintain a record of the information provided by the foundation or other entity for the duration of the notification request.

(iv) If the foundation or other entity telephones the department between 8:00 a.m. and 5:00 p.m., Monday through Friday, the department shall immediately attempt to telephone the requesting party and give notification of the scheduled application. A record showing the date and time of all such attempts shall be maintained by the department for the duration of the notification request.

(v) In addition to the methods of notification provided at this subparagraph, notification to farm labor camps may be provided in writing by placing a written notice on an on-site bulletin board or other central, on-site posting place which is readily accessible to labor camp residents.

(B) The notice shall include:

(i) the location of the field on which the application is to be made;

(ii) the intended date and approximate time of application;

(iii) the trade and common chemical name of the pesticide to be applied; and

(iv) who to contact for additional information.

(7) Notice shall be given no later than 24 hours prior to a scheduled pesticide application.

(8) Notice need not be given in accordance with paragraph (7) of this subsection when an immediate application is required and time does not reasonably allow the giving of such notice. In this event, notice of an immediate emergency application shall be given:

(A) by the method selected in accordance with paragraph (6)(A) of this subsection as soon as reasonably possible before the application; or

(B) by telephone or in person to a medically-affected person as soon as reasonably possible, but not less than one hour before the application. However, an immediate emergency application need not be postponed if, after reasonable efforts by the foundation or other entity, actual notice cannot be given.

(9) A person who has requested notice of a pesticide application under this section shall notify the foundation or other entity promptly and in writing of any change of address or telephone number.

Source Note: The provisions of this §7.37 adopted to be effective December 4, 1997, 22 TexReg 11652; amended to be effective March 9, 2023, 48 TexReg 1286