Fair Play Viticultural Area (2000R-170P)

AGENCY:

Bureau of Alcohol, Tobacco and Firearms (ATF), Treasury

ACTION:

Notice of proposed rulemaking.

SUMMARY:

The Bureau of Alcohol, Tobacco and Firearms (ATF) is considering the establishment of a viticultural area to be known as “Fair Play,” located in southern El Dorado County, California, entirely within the existing “El Dorado” and “Sierra Foothills” viticultural areas. This proposal is the result of a petition filed by Brian Fitzpatrick, President of Fair Play Winery Association. Mr. Fitzpatrick believes that “Fair Play” is a widely known name for the petitioned area, that the area is well defined, and that the area is distinguished from other areas by its soil, elevation, climate, terrain, and topography.

DATES:

Written comments must be received by September 25, 2000.

ADDRESSES:

Send written comments to: Chief, Regulations Division, Bureau of Alcohol, Tobacco and Firearms, P.O. Box 50221, Washington, DC 20091-0221, (Attention: Notice No. 900). See “Public Participation” section of this notice if you want to comment by facsimile or e-mail.

FOR FURTHER INFORMATION CONTACT:

Lisa M. Gesser, Regulations Division, Bureau of Alcohol, Tobacco and Firearms, 650 Massachusetts Avenue, NW., Washington, DC 20226 (202-927-9347).

SUPPLEMENTARY INFORMATION:

1. Background on Viticultural Areas

What is ATF's Authority to Establish a Viticultural Area?

ATF published Treasury Decision ATF-53 (43 FR 37672, 54624) on August 23, 1978. This decision revised the regulations in 27 CFR part 4, Labeling and Advertising of Wine, to allow the establishment of definitive viticultural areas. The regulations allow the name of an approved viticultural area to be used as an appellation of origin in the labeling and advertising of wine.

On October 2, 1979, ATF published Treasury Decision ATF-60 (44 FR 56692) which added 27 CFR part 9, American Viticultural Areas, for the listing of approved American viticultural areas, the names of which may be used as appellations of origin.

What is the Definition of an American Viticultural Area?

Section 4.25a(e)(1), title 27, CFR, defines an American viticultural area as a delimited grape-growing region distinguishable by geographical features. Viticultural features such as soil, climate, elevation, topography, etc., distinguish it from surrounding areas.

What is Required to Establish a Viticultural Area?

Any interested person may petition ATF to establish a grape-growing region as a viticultural area. The petition should include:

• Evidence that the name of the proposed viticultural area is locally and/or nationally known as referring to the area specified in the petition;
• Historical or current evidence that the boundaries of the viticultural area are as specified in the petition;
• Evidence relating to the geographical features (climate, soil, elevation, physical features, etc.) which distinguish the viticultural features of the proposed area from surrounding areas;
• A description of the specific boundaries of the viticultural area, based on features which can be found on United States Geological Survey (U.S.G.S.) maps of the largest applicable scale; and
• A copy of the appropriate U.S.G.S. map(s) with the boundaries prominently marked.

2. Fair Play Petition

ATF has received a petition from Brian Fitzpatrick, President of Fair Play Winery Association, proposing to establish a viticultural area in southern El Dorado County, California, known as “Fair Play.” The proposed viticultural area is located entirely within the existing “El Dorado” and “Sierra Foothills” viticultural areas described in 27 CFR 9.61 and 9.120.

The proposed area encompasses approximately 33 square miles. The total acreage of vineyards is approximately 350 acres, of which 250 acres are currently in production. The proposed viticultural area now boasts ten bonded wineries and a number of vineyards ranging in size from less than five acres to over seventy acres.

What Name Evidence Has Been Provided?

According to the petitioner, the proposed “Fair Play” viticultural area takes its name from an old gold mining camp during the California gold rush. Although Fair Play was at first only a mining camp, the town later became a trading center and post office for drift and hydraulic mines in the area. The Alta Californian newspaper dated December 21, 1853, mentions Fair Play as a prosperous little mining town with several stores and hotels.

Today, the name “Fair Play” is used to designate a former school, an existing crossroads store, and a farm road located within the proposed boundaries. In 1998, residents of Fair Play petitioned the United States Postal Service to acknowledge Fair Play as a postal address. The petition was granted and Fair Play now shares the Zip Code 95684 with Somerset.

According to the petitioner, the first commercial vineyard and winery in “Fair Play” was established in 1887 by a Civil War veteran, Horace Bigelow. Bigelow planted 4,000 grape vines and by 1898 was producing between 600 and 1,000 gallons of wine each year. Today, “Fair Play” is gaining recognition as a wine growing area and is featured in the media, on some wine labels, and in the petitioner's promotional materials. The petitioner has provided the following other references as name evidence:

• The Aukum, California 1952 (photorevised 1973) U.S.G.S. map used to show the boundaries of the proposed area, show the town of Fair Play and Fair Play School located within the proposed “Fair Play” viticultural area. The map shows no conflicting designation for the remainder of the proposed area;
• Correspondence from Jim McBroom, Manager of Operations Programs Support with the United States Postal Service, indicating that Fair Play, California 95684 is an authorized last line mailing address;
• An article about the history of the Fair Play area written in 1998 by Doug Noble, Democrat correspondent, for the Mountain Democrat;
• Fair Play Winery Association's 16th annual brochure advertising the “Fair Play Wine Festival;”
• Fair Play Winery Association's 17th annual brochure advertising the “Fair Play Wine Festival;”
• The Articles of Incorporation of the Fair Play Winery Association; and
• An excerpt from a book in progress by historian Erick Costa called Gold and Wine, A History of Winemaking in El Dorado County, California.

What Boundary Evidence Has Been Provided?

The petitioner contends that the name “Fair Play” is used to designate the entire area bisected by Fair Play Road. The general boundaries are the canyon of the Middle Fork of the Cosumnes River to the north; rugged terrain and higher elevation to the east; a change in soils to the southeast and south; Cedar Creek running through a deep canyon to the southwest; Cedar Creek flowing into a short section of Scott Creek and into a mile long section of the South Fork of the Cosumnes River (near River Pines) thence northerly cross country to the Middle Fork of the Cosumnes River. In support of this approach, the petitioner provided a copy of U.S.G.S. map (Aukum, California) on which the boundaries of the proposed “Fair Play” viticultural area and town of Fair Play is prominently labeled. The petitioner has also provided other maps that show that Fair Play Road runs through the proposed viticultural area, beginning at Grays Corner (shown as Melsons Corner on the U.S.G.S. map) and running generally southeast, east and south to Omo Ranch Road. The proposed “Fair Play” viticultural area primarily consists of those farms and ranches served by Fair Play Road and its “tributaries.”

What Evidence Relating to Geographical Features Has Been Provided?

• Soil:

According to the petitioner, the proposed “Fair Play” viticultural area is characterized by deep, moderately to well drained, granitic soils of the Holland, Shaver, and Musick series. These soils consist of sandy loams and coarse sandy loams, with an effective average rooting depth between 40 and 60 inches. The soil maps taken from the USDA Soil Survey show the specific areas where each of these soils predominate; the proposed boundaries were specifically designed to include these three soil series, and to exclude other soils which are either not granitic, or shallow, or poorly drained. The areas to the north and east of the proposed boundaries are predominately shallow granitic soils of the Chawanakee and Chaix series. The proposed northern and eastern boundaries are drawn primarily based on terrain and ease of description, but with the intent to generally exclude these soils. The southeastern and southern boundaries of “Fair Play,” the waterways of Cedar Creek into Scott Creek into the South Fork of the Cosumnes River, lay out a clear geological demarcation where the granitic soils predominate and the volcanic soils begin. Thus, the petitioner argues that “Fair Play” has a soil association that sets it apart from the rest of the Sierra Foothills and El Dorado viticultural areas.

• Terrain and Topography:

The petitioner asserts that the arable terrain within the proposed area is generally composed of rolling hillsides and rounding ridge tops. At these elevations (2,000-3,000) each vineyard's topographic location in relationship to the immediate surroundings is of utmost importance to minimize the negative effects of late spring frosts. Most of the existing vineyards are situated on the ridge tops or hillsides so there is lower ground for the cold air to drain.

To the east and southeast, the proposed boundaries include terrain too rugged for commercial viticulture. This is also true of Coyote Ridge to the south. The petitioner states that although little vineyard activity is anticipated in these steep canyon lands, the use of the Middle Fork of the Cosumnes River, Cedar Creek, Scott Creek, and South Fork of the Cosumnes River make easily understood and prominent boundaries.

• Elevation:

The petitioner asserts that the lowest elevations in the proposed area, about 2,000 feet, occur along Perry Creek and the North and South Forks of Spanish Creeks where they flow west out of the proposed viticultural area. The lowest existing vineyards sit at about 2,000 feet near Mt. Aukum. The elevation rises to the north, east and south to a maximum of about 2,800 feet above Slug Gulch Road and Walker Ridge.

To the north, the steep sides of the canyon of the Middle Fork of the Cosumnes River are not suitable for viticulture. The bottom land along the river, ranging from 1,700 to 1,800 feet elevation, is at least two hundred feet lower in elevation than the lowest points included within the proposed boundaries.

The rugged terrain east of the proposed boundaries, and the volcanic “caps” to the southeast and south quickly rise above 2,800 feet.

Elevation is significant because of its effect on growing conditions in the Sierra Nevada Foothills.

• Growing Season and Rainfall:

According to the petitioner, the U.S.D.A. Soil Survey shows that in this part of Sierra Foothills, rainfall generally increases along with the elevation. The isobars generally run from the northwest to southeast, similar to the general run of the elevation contour lines. The proposed “Fair Play” area receives between 35 to 40 inches of rain in an average year, while the lower areas to the west and southwest of “Fair Play” receive 35 inches or less.

The U.S.D.A. chart for the length of growing season follows the reverse pattern; as elevation increases, the growing season decreases. “Fair Play” enjoys an average growing season of between about 230 and 250 days; the areas to the west and southwest show over 250 days.

Thus, the petitioner asserts that the proposed “Fair Play” viticultural area enjoys more rainfall, but with a shorter growing season, than the areas to the west and southwest.

• Climate:

According to the petitioner, based on the standard University of California at Davis (UCD) temperature summation definition of climatic regions or zones, the proposed “Fair Play” viticultural area would appear to fall into high Region 3 (less than 3,500 degree days). The areas to the west and southwest fall into low Region 4 (over 3,500 degree days).

3. Regulatory Analyses and Notices

Is This a Significant Regulatory Action as Defined by Executive Order 12866?

It has been determined that this proposed regulation is not a significant regulatory action as defined in Executive Order 12866. Accordingly, this proposal is not subject to the analysis required by this Executive Order.

How Does the Regulatory Flexibility Act Apply to This Proposed Rule?

The proposed regulations will not have a significant economic impact on a substantial number of small entities. The establishment of a viticultural area is neither an endorsement or approval by ATF of the quality of wine produced in the area, but rather an identification of an area that is distinct from surrounding areas. ATF believes that the establishment of viticultural areas merely allows wineries to more accurately describe the origin of their wines to consumers, and helps consumers identify the wines they purchase. Thus, any benefit derived from the use of a viticultural area name is the result of the proprietor's own efforts and consumer acceptance of wines from that area.

No new requirements are proposed. Accordingly, a regulatory flexibility analysis is not required.

Does the Paperwork Reduction Act Apply to This Proposed Rule?

The Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35, and its implementing regulations, 5 CFR Part 1320, do not apply to this notice of proposed rulemaking because no requirement to collect information is proposed.

4. Public Participation

Who May Comment on This Notice?

ATF requests comments from all interested parties. In addition, ATF specifically requests comments on the clarity of this proposed rule and how it may be made easier to understand. Comments received on or before the closing date will be carefully considered. Comments received after that date will be given the same consideration if it is practical to do so. However, assurance of consideration can only be given to comments received on or before the closing date.

Can I Review Comments Received?

Copies of the petition, the proposed regulations, the appropriate maps, and any written comments received will be available for public inspection during normal business hours at the ATF Reading Room, Office of the Liaison and Public Information, Room 6480, 650 Massachusetts Avenue, N.W., Washington, D.C. 20226. For information on filing a Freedom of Information Act request for a copy of the comments, please refer to the internet address: http://www.atf.treas.gov/about/foia/foia.htm.

Will ATF Keep My Comments Confidential?

ATF will not recognize any comment as confidential. All comments and materials will be disclosed to the public. If you consider your material to be confidential or inappropriate for disclosure to the public, you should not include it in the comments. We will also disclose the name of any person who submits a comment.

During the comment period, any person may request an opportunity to present oral testimony at a public hearing. However, the Director reserves the right to determine, in light of all circumstances, whether a public hearing will be held.

How do I Send Facsimile Comments?

You may submit comments by facsimile transmission to (202) 927-8525. Facsimile comments must:

• Be legible.
• Reference this notice number.
• Be on paper 81/2″ × 11″ in size.
• Contain a legible written signature.
• Be not more than three pages.

We will not acknowledge receipt of facsimile transmissions. We will treat facsimile transmissions as originals.

How Do I Send Electronic Mail (E-Mail) Comments?

You may submit comments by e-mail by sending the comments to nprm@atfhq.atf.treas.gov. You must follow these instructions. E-mail comments must:

• Contain your name, mailing address, and e-mail address.
• Reference this notice number.
• Be legible when printed on not more than three pages, 81/2″ × 11″ in size.

We will not acknowledge receipt of e-mail. We will treat comments submitted by e-mail as originals.

How do I Send Comments to the ATF Internet Web Site?

You may also submit comments using the comment form provided with the online copy of the proposed rule on the ATF internet web site at http://www.atf.treas.gov.

Drafting Information: The principal author of this document is Lisa M. Gesser, Regulations Division, Bureau of Alcohol, Tobacco and Firearms.

List of Subjects in 27 CFR Part 9

• Administrative practices and procedures
• Consumer protection
• Viticultural areas, and Wine

Authority and Issuance

Title 27, Code of Federal Regulations, Part 9, American Viticultural Areas, is proposed to be amended as follows:

PART 9—AMERICAN VITICULTURAL AREAS

Paragraph 1. The authority citation for part 9 continues to read as follows:

Authority: 27 U.S.C. 205.

Subpart C—Approved American Viticultural Areas

Par. 2. Subpart C is amended by adding § 9.168 to read as follows: