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RULE §21.10Record Keeping; Rebuttable Presumption; and Seizure

(a) Each lot of regulated articles sold, transported or distributed within this state shall have a unique identifying number and be accompanied by an invoice, receipt, or other document(s) containing the following information:

  (1) the identifying number of each lot of the regulated articles;

  (2) the name, address, and telephone number of the producer of the regulated articles;

  (3) if in transit, the name, address, and telephone number of the person to whom the regulated articles are to be delivered; and

  (4) the genus or widely recognized common name of the regulated article(s) and the number of individual regulated articles distributed or transported.

(b) A copy or copies of the document(s) required by subsection (a) of this section shall be provided to each person, other than a retail buyer, receiving all or a portion of the lot of regulated articles.

(c) A person, other than a retail buyer, shall not accept a distribution of regulated articles from any person unless accompanied by the documentation required by subsection (a) and/or subsection (b) of this section.

(d) Any person or organization who produces, sells, leases, or offers for sale or otherwise receives, or holds regulated articles for sale to any business outlet for resale purposes shall maintain a copy or copies of the document(s) required by subsection (a) and/or subsection (b) of this section for a period of at least three years after the sale or other distribution of the regulated article. Copies of the documents are not required to be maintained by the end user (grower or homeowner).

(e) A person required to maintain records under subsection (d) of this section shall, upon written request of the Department, deliver copies of the records by mail, facsimile, commercial carrier, hand-delivery, electronic or other means during normal business hours.

(f) A rebuttable presumption that the regulated articles for which records are to be maintained under subsection (d) of this section constitute quarantined articles is created if:

  (1) the distributor fails to produce records or copies of records pursuant to a written request under either subsection (e) of this section or this subsection; or

  (2) a regulated article with a tag or label required by this subchapter does not correspond with the records required to be maintained under subsection (d) of this section.

(g) Regulated articles deemed quarantined articles under subsection (f) of this section shall be seized by the Department and shall not be further distributed without the written permission of the Department.

  (1) The Department shall hand-deliver notice of seizure order to the owner, or a representative of the owner at least 18 years of age, at the owner's place of business, listing the number and description of the regulated articles seized, stating the reason for seizure and the time period for rebutting the presumption set forth in subsection (f) of this section, and bearing the signature of the Department's inspector or representative seizing the regulated articles.

  (2) The presumption that regulated articles are quarantined articles may be rebutted by providing:

    (A) adequate documentation or other assurances regarding the state and country of origin of the regulated articles and the chain of custody of the regulated articles from origin to the person affected by the order; or

    (B) an adequate demonstration that the plants or plant products do not or cannot host a plant pest or plant disease for which a quarantine has been imposed under either state or federal law.

(h) For each treatment applied pursuant to §21.6(b) of this chapter (relating to Restrictions), records shall be maintained by the nursery for four years following the last treatment date for a given lot of regulated articles. Required records for each mandatory treatment shall include, but are not limited to:

  (1) The lot numbers of plants treated;

  (2) The pesticides applied, including application dates;

  (3) EPA registration number of each product used;

  (4) Application rate and method of treatment; and

  (5) Name of applicator.

(i) The nursery shall make available all required records to the Department upon request for inspection.

(j) Each failure to comply with a requirement of this section constitutes a separate violation for which an administrative penalty may be assessed and each day a violation continues or occurs may be considered a separate violation.

Source Note: The provisions of this §21.10 adopted to be effective March 22, 2018, 43 TexReg 1629

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