83 FR 45582 - Rescission of Guides for the Nursery Industry

FEDERAL TRADE COMMISSION

Federal Register Volume 83, Issue 175 (September 10, 2018)

Page Range		45582-45584
FR Document		2018-19227

The Federal Trade Commission (``FTC'' or ``Commission''), following its initial review of the Guides for the Nursery Industry (``Nursery Guides'' or ``Guides''), proposes to rescind the Guides and remove them from the Code of Federal Regulations.

Federal Register, Volume 83 Issue 175 (Monday, September 10, 2018)

[Federal Register Volume 83, Number 175 (Monday, September 10, 2018)]
[Proposed Rules]
[Pages 45582-45584]
From the Federal Register Online [www.thefederalregister.org]
[FR Doc No: 2018-19227]

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FEDERAL TRADE COMMISSION

16 CFR Part 18

Rescission of Guides for the Nursery Industry

AGENCY: Federal Trade Commission.

ACTION: Proposed rule; rescission of Guides and removal of Guides from
the CFR.

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SUMMARY: The Federal Trade Commission (``FTC'' or ``Commission''),
following its initial review of the Guides for the Nursery Industry
(``Nursery Guides'' or ``Guides''), proposes to rescind the Guides and
remove them from the Code of Federal Regulations.

DATES: Written comments must be received on or before November 5, 2018.

ADDRESSES: Interested parties may file a comment online or on paper, by
following the instructions in the Request for Comment part of the
SUPPLEMENTARY INFORMATION section below. Write ``Nursery Guides (Matter
No. P994248)'' on your comment, and file your comment online at https://ftcpublic.commentworks.com/ftc/nurseryguides, by following the
instructions on the web-based form. If you prefer to file your comment
on paper, mail your comment to the following address: Federal Trade
Commission, Office of the Secretary, 600 Pennsylvania Avenue NW, Suite
CC-5610 (Annex A), Washington, DC 20580, or deliver your comment to the
following address: Federal Trade Commission, Office of the Secretary,
Constitution Center, 400 7th Street SW, 5th Floor, Suite 5610,
Washington, DC 20024.

FOR FURTHER INFORMATION CONTACT: Hampton Newsome, (202) 326-2889,
Attorney, Division of Enforcement, Bureau of Consumer Protection,
Federal Trade Commission, Room CC-9541, 600 Pennsylvania Avenue NW,
Washington, DC 20580.

SUPPLEMENTARY INFORMATION:

I. Background

The Commission issued the Guides for the Nursery Industry in
1979.\1\ These Guides address various sales claims for outdoor plants,
including representations regarding quantity, size, grade, kind,
species, age, maturity, condition, vigor, hardiness, growth ability,
price, and origin or place where grown. The Commission amended the
Guides in 1994 to update legal terminology, and again in 2007 to make a
technical correction.\2\
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\1\ The Commission issued the Guides in 1979 (44 FR 11176 (Feb.
27, 1979)) to replace trade practice rules for the nursery industry
(16 CFR part 34) first promulgated in the 1950's (23 FR 4803 (June
28, 1958)). The Guides help marketers avoid making claims that are
unfair or deceptive under Section 5 of the FTC Act, 15 U.S.C. 45.
Industry guides, such as the Nursery Guides, are administrative
interpretations of laws administered by the Commission. They do not
have the force of law and are not independently enforceable. Failure
to follow industry guides may result, however, in enforcement action
under the FTC Act, 15 U.S.C. 45. In any such action, the Commission
must prove that the act or practice at issue is unfair or deceptive
in violation of Section 5 of the FTC Act.
\2\ See 59 FR 64546 (Dec. 14, 1994); 72 FR 901 (Jan. 9, 2007).
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The Commission reviews its rules and guides periodically to seek
information about their costs and benefits to consumers and businesses,
regulatory and economic impact, and general effectiveness in protecting
consumers and helping industry avoid deceptive claims. These reviews
assist the Commission in identifying rules and guides that may warrant
modification or rescission.
On February 22, 2018, the Commission initiated its scheduled
regulatory review of the Guides and solicited public comment on several
issues.\3\ Specifically, the Commission sought input on, among other
things, the continuing need for the Guides; their economic impact;
possible conflict between the Guides and state, local, federal, or
international laws; and the effect of any technological, economic,
environmental, or other industry changes. The Commission also solicited
comment on issues specific to the Guides, such as whether the
Commission should update plant name classification references. The
Commission received one comment, discussed below.
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\3\ See 83 FR 7643 (Feb. 22, 2018).

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[[Page 45583]]

II. Comment Received

The sole commenter, the National Federation of Independent Business
(``NFIB''), urged the Commission to rescind the Guides as an
unnecessary federal regulatory burden. NFIB asserted that most nursery
businesses are small businesses and ``a significant portion of the
industry is predominantly intrastate rather than interstate in
practical character.'' Therefore, they contend that regulation or
guidance concerning the nursery business is more properly conducted at
the state, rather than federal, level. NFIB, however, did not address
any of the Commission's specific questions.

III. Proposed Rescission of the Guides

The Commission proposes to rescind the Guides because, as discussed
below, they no longer appear necessary, and thus serve little purpose
to industry or consumers. In proposing this approach, the Commission
has considered the prevalence of practices covered by the Guides,
industry use of the Guides, and the Commission's ability to address
deceptive practices through enforcement actions or issuance of other
educational materials in the Guides' absence.
First, the types of practices detailed in the Guides do not appear
to be prevalent in the nursery industry. The Guides focus on
misrepresentations about species, size, rate of growth, and other plant
characteristics. Recent FTC complaints related to nurseries and outdoor
plant sales, however, suggest that current consumer concerns have
little to do with these types of practices. Indeed, nearly all recent
complaints received by the Commission regarding plant sales involve
online plant orders that were either dormant or dead upon arrival,
incomplete, not delivered in the time promised (or at all), or not
refunded upon request.\4\
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\4\ The Guides address some of the practices identified in the
complaints indirectly or in limited ways. For instance, Sec.
18.1(c)(2) states it is deceptive to represent ``[t]hat industry
products are healthy . . . when such is not the fact.'' In addition,
some complaints involve incorrect orders, which are covered by Sec.
18.1(a). However, the Commission sees no need to maintain the Guides
simply to preserve such limited, self-evident guidance.
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Furthermore, the Commission lacks evidence that industry members
currently use the Guides to help avoid deceptive practices. For
example, FTC staff found no mention of the Guides on websites for
industry associations, nurseries, or other industry entities.
Additionally, the Commission is unaware of any unique, pervasive
consumer protection issues currently associated with the advertising or
labeling of outdoor plants. The sole comment submitted to the
Commission argued that there was no continuing need for special
guidance in the nursery industry. The absence of comments from nursery-
related entities in response to the February 2018 notice reinforces the
conclusion that the Guides have limited utility or significance to the
industry in today's market.
Finally, the Guides' rescission will have no impact on the FTC's
ability to address unfair and deceptive practices in the nursery
industry. If the Commission determines that certain practices in the
sale of outdoor plants are materially misleading, it can address such
practices through enforcement actions under Section 5 of the FTC
Act.\5\ Should industry members desire continued guidance, FTC staff
can provide informal guidance through business education materials
(e.g., FAQ's) posted on the Commission's website.
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\5\ Section 5 of the FTC Act, 15 U.S.C. Section 45(a)(1),
prohibits unfair or deceptive acts or practices in or affecting
commerce.
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IV. Request for Comment

The Commission seeks comments on all aspects of the proposed
rescission. Among other things, commenters should address any
continuing need for the Guides, the impacts of their rescission on
industry members and consumers, and other measures the Commission
should consider in their place (e.g., business education materials).
You can file a comment online or on paper. For the Commission to
consider your comment, we must receive it on or before November 5,
2018. Write ``Nursery Guides (Matter No. P994248)'' on your comment.
Your comment--including your name and your state--will be placed on the
public record of this proceeding, including, to the extent practicable,
on the public FTC website, at https://www.ftc.gov/policy/public-comments.
Postal mail addressed to the Commission is subject to delay due to
heightened security screening. As a result, we encourage you to submit
your comments online. To make sure that the Commission considers your
online comment, you must file it at https://ftcpublic.commentworks.com/ftc/nurseryguides, by following the instruction on the web-based form.
If this Notice appears at http://www.regulations.gov, you also may file
a comment through that website.
If you file your comment on paper, write ``Nursery Guides (Matter
No. P994248)'' on your comment and on the envelope, and mail your
comment to the following address: Federal Trade Commission, Office of
the Secretary, 600 Pennsylvania Avenue NW, Suite CC-5610 (Annex A),
Washington, DC 20580, or deliver your comment to the following address:
Federal Trade Commission, Office of the Secretary, Constitution Center,
400 7th Street SW, 5th Floor, Suite 5610, Washington, DC 20024. If
possible, please submit your paper comment to the Commission by courier
or overnight service.
Because your comment will be placed on the publicly accessible FTC
website at www.ftc.gov, you are solely responsible for making sure that
your comment does not include any sensitive or confidential
information. In particular, your comment should not include any
sensitive personal information, such as your or anyone else's Social
Security number; date of birth; driver's license number or other state
identification number, or foreign country equivalent; passport number;
financial account number; or credit or debit card number. You are also
solely responsible for making sure that your comment does not include
any sensitive health information, such as medical records or other
individually identifiable health information. In addition, your comment
should not include any ``trade secret or any commercial or financial
information which is . . . privileged or confidential''--as provided by
section 6(f) of the FTC Act, 15 U.S.C. 46(f), and FTC Rule 4.10(a)(2),
16 CFR 4.10(a)(2)--including in particular competitively sensitive
information such as costs, sales statistics, inventories, formulas,
patterns, devices, manufacturing processes, or customer names.
Comments containing material for which confidential treatment is
requested must be filed in paper form, must be clearly labeled
``Confidential,'' and must comply with FTC Rule 4.9(c). In particular,
the written request for confidential treatment that accompanies the
comment must include the factual and legal basis for the request, and
must identify the specific portions of the comment to be withheld from
the public record. See FTC Rule 4.9(c). Your comment will be kept
confidential only if the FTC General Counsel grants your request in
accordance with the law and the public interest. Once your comment has
been posted on the public FTC website--as legally required by FTC Rule
4.9(b)--we cannot redact or remove your comment from the FTC website,
unless you submit a confidentiality request that meets the requirements
for such treatment under

[[Page 45584]]

FTC Rule 4.9(c), and the General Counsel grants that request.
Visit the FTC website to read this NPRM and the news release
describing it. The FTC Act and other laws that the Commission
administers permit the collection of public comments to consider and
use in this proceeding, as appropriate. The Commission will consider
all timely and responsive public comments that it receives on or before
November 5, 2018. For information on the Commission's privacy policy,
including routine uses permitted by the Privacy Act, see https://www.ftc.gov/site-information/privacy-policy.

List of Subjects in 16 CFR Part 18

Advertising, Nursery, Trade practices.

PART 18--[REMOVED]

0
For the reasons stated in the preamble, and under the authority of 15
U.S.C. 45, the Federal Trade Commission proposes to remove 16 CFR part
18.

By direction of the Commission.
Donald S. Clark,
Secretary.
[FR Doc. 2018-19227 Filed 9-7-18; 8:45 am]
BILLING CODE 6750-01-P

45582 Federal Register / Vol. 83, No. 175 / Monday, September 10, 2018 / Proposed Rules

§ 39.13 [Amended] Customer Support Division, 4555 E. Attorney, Division of Enforcement,
■ 2. The FAA amends § 39.13 by adding McDowell Rd., Mail Stop M615, Mesa, AZ Bureau of Consumer Protection, Federal
the following new airworthiness 85215–9734; telephone 1–800–388–3378; fax Trade Commission, Room CC–9541, 600
480–346–6813; or at http://
directive (AD): Pennsylvania Avenue NW, Washington,
www.mdhelicopters.com. You may review a
MD Helicopters Inc.: Product No. FAA– copy of information at the FAA, Office of the DC 20580.
2017–1125; Product Identifier 2017–SW– Regional Counsel, Southwest Region, 10101 SUPPLEMENTARY INFORMATION:
078–AD. Hillwood Pkwy, Room 6N–321, Fort Worth,
(a) Applicability TX 76177. I. Background
This AD applies to MD Helicopters Inc. (i) Subject The Commission issued the Guides
(MDHI) Model 600N helicopters, certificated Joint Aircraft Service Component (JASC) for the Nursery Industry in 1979.1 These
in any category, with a yaw stability Code: 6710, Main Rotor Control.
augmentation system and with a main rotor
Guides address various sales claims for
(M/R) blade upper control collective/ Issued in Fort Worth, Texas, on August 27,
outdoor plants, including
longitudinal link assembly (link assembly) 2018. representations regarding quantity, size,
part number (P/N) 600N7617–1 installed. Scott A. Horn,
grade, kind, species, age, maturity,
(b) Unsafe Condition
condition, vigor, hardiness, growth
Deputy Director for Regulatory Operations,
Compliance & Airworthiness Division,
ability, price, and origin or place where
This AD defines the unsafe condition as a grown. The Commission amended the
link assembly remaining in service beyond Aircraft Certification Service.
its fatigue life. This condition could result in [FR Doc. 2018–19435 Filed 9–7–18; 8:45 am]
Guides in 1994 to update legal
failure of the link assembly, failure of M/R terminology, and again in 2007 to make
BILLING CODE 4910–13–P
blade pitch control, and subsequent loss of a technical correction.2
helicopter control. The Commission reviews its rules and
(c) Comments Due Date FEDERAL TRADE COMMISSION guides periodically to seek information
We must receive comments by November about their costs and benefits to
9, 2018. 16 CFR Part 18 consumers and businesses, regulatory
and economic impact, and general
(d) Compliance
Rescission of Guides for the Nursery effectiveness in protecting consumers
You are responsible for performing each Industry and helping industry avoid deceptive
action required by this AD within the
claims. These reviews assist the
specified compliance time unless it has AGENCY: Federal Trade Commission.
already been accomplished prior to that time. Commission in identifying rules and
ACTION:Proposed rule; rescission of guides that may warrant modification or
(e) Required Actions Guides and removal of Guides from the rescission.
Within 100 hours time-in-service (TIS): CFR.
(1) Determine the total hours time-in-
On February 22, 2018, the
service (TIS) of each link assembly P/N SUMMARY: The Federal Trade Commission initiated its scheduled
600N7617–1. If the hours TIS are unknown, Commission (‘‘FTC’’ or ‘‘Commission’’), regulatory review of the Guides and
use the hours TIS of the helicopter. Remove following its initial review of the Guides solicited public comment on several
from service any link assembly that has for the Nursery Industry (‘‘Nursery issues.3 Specifically, the Commission
15,000 or more hours TIS. Thereafter, remove Guides’’ or ‘‘Guides’’), proposes to sought input on, among other things, the
from service any link assembly before rescind the Guides and remove them continuing need for the Guides; their
accumulating 15,000 hours TIS. economic impact; possible conflict
(2) Create a component history card or from the Code of Federal Regulations.
equivalent record for each link assembly P/ DATES: Written comments must be between the Guides and state, local,
N 600N7617–1 and record a life limit of received on or before November 5, 2018. federal, or international laws; and the
15,000 hours TIS. effect of any technological, economic,
ADDRESSES: Interested parties may file a
environmental, or other industry
(f) Special Flight Permits comment online or on paper, by
changes. The Commission also solicited
Special flight permits are prohibited. following the instructions in the
comment on issues specific to the
Request for Comment part of the
(g) Alternative Methods of Compliance Guides, such as whether the
SUPPLEMENTARY INFORMATION section
(AMOC) Commission should update plant name
below. Write ‘‘Nursery Guides (Matter
(1) The Manager, Los Angeles ACO Branch, classification references. The
No. P994248)’’ on your comment, and
FAA, may approve AMOCs for this AD. Send Commission received one comment,
your proposal to: Galib Abumeri, Aerospace
file your comment online at https://
discussed below.
Engineer (Structures), Airframe Section, Los ftcpublic.commentworks.com/ftc/
Angeles ACO Branch, Compliance and nurseryguides, by following the 1 The Commission issued the Guides in 1979 (44
Airworthiness Division, FAA, 3960 instructions on the web-based form. If FR 11176 (Feb. 27, 1979)) to replace trade practice
Paramount Blvd., Lakewood, California you prefer to file your comment on rules for the nursery industry (16 CFR part 34) first
90712; telephone 562–627–5324; email paper, mail your comment to the promulgated in the 1950’s (23 FR 4803 (June 28,
galib.abumeri@faa.gov. following address: Federal Trade 1958)). The Guides help marketers avoid making
(2) For operations conducted under a 14 Commission, Office of the Secretary, claims that are unfair or deceptive under Section 5
CFR part 119 operating certificate or under of the FTC Act, 15 U.S.C. 45. Industry guides, such
14 CFR part 91, subpart K, we suggest that 600 Pennsylvania Avenue NW, Suite as the Nursery Guides, are administrative
you notify your principal inspector, or CC–5610 (Annex A), Washington, DC interpretations of laws administered by the
daltland on DSKBBV9HB2PROD with PROPOSALS

20580, or deliver your comment to the Commission. They do not have the force of law and
lacking a principal inspector, the manager of
are not independently enforceable. Failure to follow
the local flight standards district office or following address: Federal Trade industry guides may result, however, in
certificate holding district office before Commission, Office of the Secretary, enforcement action under the FTC Act, 15 U.S.C.
operating any aircraft complying with this Constitution Center, 400 7th Street SW, 45. In any such action, the Commission must prove
AD through an AMOC. 5th Floor, Suite 5610, Washington, DC that the act or practice at issue is unfair or deceptive
in violation of Section 5 of the FTC Act.
(h) Additional Information 20024. 2 See 59 FR 64546 (Dec. 14, 1994); 72 FR 901 (Jan.

For service information identified in this FOR FURTHER INFORMATION CONTACT: 9, 2007).
AD, contact MD Helicopters, Inc., Attn: Hampton Newsome, (202) 326–2889, 3 See 83 FR 7643 (Feb. 22, 2018).

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45584 Federal Register / Vol. 83, No. 175 / Monday, September 10, 2018 / Proposed Rules

FTC Rule 4.9(c), and the General necessary to protect spectators, expected to recur annually and provide
Counsel grants that request. participants, and vessels from the new information on two existing safety
Visit the FTC website to read this hazards associated with annual marine zones.
NPRM and the news release describing events. This proposed rulemaking The proposed annually recurring
it. The FTC Act and other laws that the would prohibit entry into the safety safety zones are necessary to provide for
Commission administers permit the zones during the events unless the safety of life on navigable waters
collection of public comments to authorized by the Captain of the Port during marine events. Based on the
consider and use in this proceeding, as Sector New Orleans or a designated nature of these marine events, large
appropriate. The Commission will representative. We invite your numbers of participants and spectators,
consider all timely and responsive comments on this proposed rulemaking. and locations of the events, the COTP
public comments that it receives on or DATES: Comments and related material has determined that the events listed in
before November 5, 2018. For must be received by the Coast Guard on this proposed rule could pose a risk to
information on the Commission’s or before October 10, 2018. participants or waterway users if the
privacy policy, including routine uses ADDRESSES: You may submit comments normal vessel traffic were to interfere
permitted by the Privacy Act, see identified by docket number USCG– with the events. Possible hazards
https://www.ftc.gov/site-information/ 2018–0736 using the Federal include risks of injury or death from
privacy-policy. eRulemaking Portal at http:// near or actual contact among participant
List of Subjects in 16 CFR Part 18 www.regulations.gov. See the ‘‘Public vessels and spectators or mariners
Participation and Request for traversing through the safety zones. In
Advertising, Nursery, Trade practices.
Comments’’ portion of the order to protect the safety of all
PART 18—[REMOVED] SUPPLEMENTARY INFORMATION section for waterway users, including event
further instructions on submitting participants and spectators, this
■ For the reasons stated in the preamble, comments. proposed rule would establish safety
and under the authority of 15 U.S.C. 45, FOR FURTHER INFORMATION CONTACT: If zones for the time and location of each
the Federal Trade Commission proposes you have questions about this proposed marine event.
to remove 16 CFR part 18. rulemaking, call or email Lieutenant This purpose of this proposed
By direction of the Commission. Commander Benjamin Morgan, Sector rulemaking is to ensure the safety of
Donald S. Clark, New Orleans, U.S. Coast Guard; vessels on the navigable waters in the
Secretary. telephone 504–365–2281, email safety zones during the scheduled
[FR Doc. 2018–19227 Filed 9–7–18; 8:45 am] Benjamin.P.Morgan@uscg.mil. events. Vessels would not be permitted
SUPPLEMENTARY INFORMATION: to enter the safety zone unless
BILLING CODE 6750–01–P
authorized by the COTP or a designated
I. Table of Abbreviations representative. The Coast Guard
CFR Code of Federal Regulations proposes this rulemaking under
DEPARTMENT OF HOMELAND authority in 33 U.S.C. 1231.
COTP Captain of the Port Sector New
SECURITY Orleans
DHS Department of Homeland Security
III. Discussion of Proposed Rule
Coast Guard FR Federal Register The COTP proposes to amend its
NPRM Notice of proposed rulemaking
33 CFR Part 165 safety zone regulations for annual
§ Section
U.S.C. United States Code events in Coast Guard Sector New
[Docket Number USCG–2018–0736] Orleans listed in Table 5 of 33 CFR
RIN 1625–AA00 II. Background, Purpose, and Legal 165.801. From time to time this section
Basis needs to be amended to properly reflect
Safety Zones; Coast Guard Sector New The Captain of the Port Sector New recurring safety zones in Sector New
Orleans Annual and Recurring Safety Orleans (COTP) proposes to amend Orleans’ area of responsibility. This rule
Zones Table 5 of 33 CFR 165.801 to update the would add four new recurring safety
table of annual firework displays and zones and amend the location or dates
AGENCY: Coast Guard, DHS.
other marine events in Coast Guard of two safety zones already listed in the
ACTION: Notice of proposed rulemaking. current table. Other than the described
Sector New Orleans. The current list of
SUMMARY: The Coast Guard proposes to annual and recurring safety zones in changes, the regulations of 33 CFR
amend its safety zone regulations for Sector New Orleans is published in 165.801 and other provisions in Table 5
annual events in Coast Guard Sector Table 5 of 33 CFR 165.801. That most of § 165.801 would remain unchanged.
New Orleans’ area of responsibility. recent table was created through the The Coast Guard proposes to revise
This proposed rule would add four new interim final rule published on April 22, regulations in Table 5 of 33 CFR 165.801
recurring safety zones and amend the 2014 (79 FR 22398). The current Table by adding four new safety zones. The
location or dates for two events already 5 in 33 CFR 165.801 needs to be safety zones being added to Table 5 are
listed in the table. This action is amended to include new safety zones below:

Sector New
Date Sponsor/name Orleans Safety zone
daltland on DSKBBV9HB2PROD with PROPOSALS

location

Saturday before Labor Day Baton Rouge Paddle Club Baton Rouge, LA ............... Mississippi River from mile marker 215 to 230.4,
and Muddy water Paddle Baton Rouge, LA.
Co./Big River Regional.
July 4th ................................ L’Auberge Casino Baton Baton Rouge, LA ............... Mississippi River from mile marker 216.0 to 217.5,
Rouge/July 4th Celebra- Baton Rouge, LA.
tion.

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Document Created: 2018-09-08 00:42:24
Document Modified: 2018-09-08 00:42:24

Category		Regulatory Information
Collection		Federal Register
sudoc Class		AE 2.7: GS 4.107: AE 2.106:
Publisher		Office of the Federal Register, National Archives and Records Administration
Section		Proposed Rules
Action		Proposed rule; rescission of Guides and removal of Guides from the CFR.
Dates		Written comments must be received on or before November 5, 2018.
Contact		Hampton Newsome, (202) 326-2889, Attorney, Division of Enforcement, Bureau of Consumer Protection, Federal Trade Commission, Room CC-9541, 600 Pennsylvania Avenue NW, Washington, DC 20580.
FR Citation		83 FR 45582
CFR Associated		Advertising; Nursery and Trade Practices