(a) Except as authorized by a permit issued under this section, or otherwise provided by this section, no person may:
  (1) culture water spinach; or
  (2) possess or transport water spinach in exchange for or with the intent to exchange for money or anything of value.
(b) No permit issued under this section is required to purchase or possess water spinach for personal consumption, provided the water spinach was lawfully purchased or obtained and is not propagated or cultured.
(c) No permit issued under this section is required to purchase or obtain water spinach for sale or re-sale, provided:
  (1) the water spinach is purchased or obtained from a controlled exotic species permit holder authorized for culture and sale of water spinach or a lawful out-of-state source;
  (2) copies of all invoices and receipts are retained for a period of one year following the date of purchase or receipt;
  (3) the water spinach is sold or transferred directly to a consumer (defined as a person purchasing or obtaining water spinach for personal consumption); and
  (4) water spinach that is not sold, transferred or consumed is disposed of in such a manner as to prevent the dispersal of water spinach beyond the establishment or location where it is sold or stored.
(d) For a facility where water spinach is cultured:
  (1) culture shall take place only in enclosed greenhouses;
  (2) a copy of the permit shall be prominently displayed at the facility for which it was issued;
  (3) all water spinach plants within the facility must be free of flowers and seeds at all times;
  (4) propagation shall be by cuttings only and propagation using seeds is prohibited;
  (5) water spinach shall be grown in only in moist soil and culture in aqueous media is prohibited;
  (6) all equipment used in the cultivation of water spinach must be cleaned of all vegetation prior to being removed from a facility.
  (7) a buffer area void of all plants, with the exception of mature woody vegetation, shall be created and maintained around the perimeter of all areas where water spinach is cultured, handled, packed, processed, stored, shipped, or disposed. The width of the buffer area shall be at least 10 feet unless the department grants a modification of buffer width based on the location of greenhouses;
  (8) the greenhouse shall be maintained at all times in such a way as to prevent escape or release of water spinach and the department shall be notified if facility repairs are necessary; and
  (9) satisfactorily demonstrate to the department, during annual facility inspections that activities authorized under this subchapter are conducted in compliance with the requirements of this subchapter and the facility is maintained in such a way as to prevent escape or release of water spinach.
(e) Packaging. All water spinach transported from a facility including water spinach transported under an interstate transport authorization shall be:
  (1) packaged in a closed or sealed container having a volume no greater than three cubic feet and may not be mixed or commingled with any other material or substance; and
  (2) identified such that each container of water spinach shall have a label placed on the outside of the container. The label must be clearly visible and shall bear the legend "Water Spinach" in English.
(f) Processing. All handling and packaging of water spinach must be done at the permitted facility within the buffer area. All water spinach fragments must be collected and disposed as described in subsection (k) of this section.
(g) Transport invoice. The permit holder shall generate a transport invoice for each sale or transfer of water spinach. Except as provided by subsection (h) of this section, no person may remove water spinach from a permitted facility unless the water spinach is accompanied by a separate transport invoice for each receiver. The transport invoice required by this section shall contain the following information, legibly written:
  (1) a unique transport invoice number;
  (2) the date of shipment;
  (3) the name, address and phone number of the permit holder;
  (4) the name, address, and phone number of the common carrier, if a common carrier is used to transport the water spinach;
  (5) the name, address and phone number of the person receiving the water spinach; and
  (6) the controlled exotic species permit number of the permit holder and receiver, as applicable.
(h) Transport log. A permit holder may transport water spinach to and from a permitted facility for the purposes of sale without first generating individual transport invoices provided the permit holder:
  (1) generates a water spinach transport invoice for each receiver at the time the water spinach is delivered; and
  (2) maintains and possesses a current and accurate daily transport log at all times during transport. The water spinach transport log required by this section shall be on a department form and shall contain the following information, legibly written, for each sale:
    (A) the date and time of shipment;
    (B) the name, address, phone number, and exotic species permit number of the permit holder;
    (C) the number of boxes of water spinach in possession at the time transport is commenced from the facility;
    (D) for each delivery or acquisition of water spinach:
      (i) the water spinach transport invoice number for each transfer of water spinach to or from the permit holder;
      (ii) receiver/supplier's name, address, and phone number;
      (iii) type of transfer-delivery or receipt; and
      (iv) the number of boxes of water spinach transferred; and.
    (E) the number of boxes of water spinach in possession upon return to the facility.
(i) Recordkeeping. A copy of each daily transport log, if applicable, or transport invoice must be retained for a period of one year following the date of purchase or receipt. If water spinach is purchased or obtained from a lawful source outside the state, a copy of the receipt and documentation of lawful sale, if applicable, must be retained for a period of one year following the date of purchase or receipt. All records required by this section shall promptly be provided upon request during normal business hours to any department employee acting within the scope of official duties.
(j) Reporting. A person permitted under this section to grow water spinach shall submit quarterly reports to the department on a form supplied by the department. The quarterly reports required by this subsection shall be submitted by March 15, June 15, September 15, and December 15 of each year and must be submitted even if no sales occurred during the quarter.
(k) Escape or release prevention, notification, and emergency plan implementation.
  (1) The permit holder shall not allow water spinach to escape from a facility or be released or spread outside the facility during cultivation, handling, packaging, processing, storage, shipping, or disposal.
  (2) The use of water spinach to feed animals is prohibited.
  (3) Water spinach that is not sold, transferred, or consumed and all fragments of water spinach not growing in soil or packaged must be placed into a secure container until packaged or transported to a secure waste or compost bin and composted, dried fully, or placed into black plastic bags prior to disposal.
  (4) The holder of a permit issued under this subchapter shall notify the department within 72 hours of discovering the escape or release of water spinach from their facility or during transport.
  (5) In the event that a facility subject to a permit issued under this section appears to be in imminent danger of flooding or other circumstance that could result in the escape or release of water spinach, the permit holder shall:
    (A) immediately begin implementation of emergency measures to prevent the escape or release of water spinach; and
    (B) notify the department of implementation of emergency measures in accordance with permit provisions.
  (6) In the event that water spinach escapes or is released from a greenhouse or a facility, the facility permit holder is responsible for all costs associated with the detection, control, and eradication of free-growing water spinach resulting from such escape or release and subsequent dispersal. Water spinach growing outside a greenhouse is considered to be escaped.
(l) Disposition of water spinach cultured without a permit. In the event that any facility is found to be culturing water spinach without a permit or following a decision by the department to refuse issuance or renewal of a permit, the department may prescribe a disposition protocol in accordance with §57.113 of this title (relating to General Provisions and Exceptions).

Source Note: The provisions of this §57.118 adopted to be effective January 27, 2021, 46 TexReg 556