[Federal Register Volume 83, Number 36 (Thursday, February 22, 2018)]
[Proposed Rules]
[Pages 7643-7644]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-03569]


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FEDERAL TRADE COMMISSION

16 CFR Part 18


Guides for the Nursery Industry

AGENCY: Federal Trade Commission.

ACTION: Regulatory review; request for public comment.

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SUMMARY: The Federal Trade Commission (``FTC'' or ``Commission'') 
requests public comments on its Guides for the Nursery Industry 
(``Nursery Guides'' or ``Guides''). The Commission is soliciting the 
comments as part of the Commission's systematic review of all current 
Commission regulations and guides.

DATES: Comments must be received by April 20, 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, 
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 610, 
Washington, DC 20024.

FOR FURTHER INFORMATION CONTACT: Megan Gray, (202) 326-3408, 
[email protected], 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 numerous sales practices for outdoor 
plants, including deceptive claims regarding quantity, size, grade, 
kind, species, age, maturity, condition, vigor, hardiness, growth 
ability, price, and origin or place where grown. As part of its 
periodic regulatory review, the Commission substantively amended the 
Nursery Guides in 1994 and adopted a technical amendment to the Guides 
in 2007.\2\
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    \1\ Industry guides are administrative interpretations of laws 
administered by the Commission. 16 CFR 1.5.
    \2\ See 59 FR 64546 (December 14, 1994); 72 FR 902 (January 9, 
2007).
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II. Regulatory Review Program

    The Commission periodically reviews all Commission rules and 
guides. These reviews seek information about the costs and benefits of 
the Commission's rules and guides and their economic impact. The 
information obtained assists the Commission in identifying rules and 
guides that warrant modification or rescission. Therefore, the 
Commission solicits comment on, among other things, the economic impact 
of and the continuing need for its Nursery Guides; possible conflict 
between the Guides and state, local, federal, or international laws; 
and the effect of any technological, economic, environmental, or other 
industry changes on the Guides.

III. Request for Comment

    The Commission is particularly interested in comments and 
supporting data on the following questions. These questions are 
designed to assist the public and should not be construed as a 
limitation on the issues on which public comment may be submitted. In 
their replies to each of these questions, commenters should provide any 
available evidence and data, such as empirical data, consumer 
perception studies, or consumer complaints, that support the 
commenter's asserted position.
    (1) Is there a continuing need for the Nursery Guides as currently 
promulgated?
    (2) Are any specific provisions of the Guides no longer necessary?
    (3) Are the deceptive or unfair practices addressed by the Guides 
prevalent in the marketplace? Are the Guides effective in addressing 
those practices? Are there deceptive or unfair practices in the selling 
of plants that are not covered by the Guides, such as vegetable plants 
marketed to consumers? Should the Guides be extended to cover other 
types of plants that consumers purchase? Are there alternatives, such 
as individual enforcement actions under the FTC Act, that would be more 
effective or equally effective in addressing those practices?
    (4) Have covered businesses adopted the Nursery Guides as part of 
their routine business practice? What is the degree of compliance with 
the Guides? How, and what effect, if any, does this have on the 
continuing need for the Guides? Do covered businesses self-regulate or 
have voluntary standards or guidance, such as through trade 
associations, that overlap with the Guides?
    (5) What benefits, if any, have the Nursery Guides provided to 
consumers of the products affected by the Guides? Do the Guides impose 
any significant costs on consumers?
    (6) What impact, if any, have the Guides had on the flow of 
truthful or deceptive information to consumers?
    (7) What changes, if any, should be made to the Nursery Guides to 
increase their benefits to consumers or reduce their costs to 
businesses? How would these changes affect consumer benefits or 
business costs?
    (8) What burdens or costs, including costs of compliance, have the 
Guides imposed on covered businesses? What burdens or costs have the 
Guides imposed on small businesses in particular? Have the Guides 
provided benefits to businesses? If so, what benefits?
    (9) What changes, if any, should be made to the Guides to reduce 
the burdens or costs imposed on businesses? In particular, should the 
Commission eliminate Section 18.7 (Misrepresentation as to character of 
business)? Does this section imply that

[[Page 7644]]

occupational licensing is a prerequisite for covered businesses? How 
would these changes affect the benefits provided by the Guides?
    (10) Is it necessary to include reference works in the Note to 
Section 18.2? Are the reference works in the Note to Section 18.2 
authoritative and readily and freely available to the public? If not, 
are there updated editions that are more authoritative and readily and 
freely available? Are there other works in the public domain that the 
Commission should consider in determining whether claims made for a 
covered plant's quality, size, grade, kind, species, age, maturity, 
condition, etc. are truthful and non-misleading? For example, do 
federal or state agricultural authorities provide guidance sufficient 
for the Commission, consumers, and covered businesses to determine 
whether claims made for covered products are truthful and non-
misleading?
    (11) Is it necessary to include the mention in the Note to Section 
18.2 of ``plant name lists periodically published by the plant 
societies and the horticultural organizations selected as international 
and national cultivar registration authorities as enumerated in 
Appendix of Naming and Registering New Cultivars?'' Is the plant name 
list sufficiently specific to be useful to consumers or businesses? Can 
more specificity be provided as to which international and national 
cultivar registration authorities are relevant, and how to locate the 
Appendix of Naming and Registering New Cultivars?
    (12) Should the Commission remove mentions of ``industry 
recommendation'' and ``industry consensus'' from the Notes to Sections 
18.2 and 18.4? Should the Commission include in the Guides only its own 
views, consistent with the Guide's purpose of furthering the public 
interest in preventing deception?
    (13) Do the Guides overlap or conflict with federal, state, or 
local laws or regulations? Do the Guides overlap or conflict with any 
international laws or regulations?
    (14) Have consumer perceptions changed since the Guides were issued 
and, if so, do these changes warrant revising the Guides?
    (15) Since the Guides were issued, what effects, if any, have 
changes in relevant technological, economic, or environmental 
conditions had on the need for or usefulness of the Guides?
    You can file a comment online or on paper. For the Commission to 
consider your comment, we must receive it on or before April 20, 2018. 
Write ``Nursery Guides, 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 
Commission 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 ensure 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, 
P994248'' on your comment and on the envelope, and mail it 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 https://www.ftc.gov, you are solely responsible for making 
sure that your comment does not include any sensitive personal 
information, such as your or anyone'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 
ensuring 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 
``[t]rade secret or any commercial or financial information which . . . 
is privileged or confidential''--as provided in 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 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 FTC Rule 4.9(c), and the General Counsel 
grants that request.
    Visit the FTC website to read this Notice 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 
April 20, 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.

    By direction of the Commission.
Donald S. Clark,
Secretary.
[FR Doc. 2018-03569 Filed 2-21-18; 8:45 am]
 BILLING CODE 6750-01-P