[Federal Register Volume 62, Number 121 (Tuesday, June 24, 1997)]
[Proposed Rules]
[Pages 34027-34031]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 97-16491]


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DEPARTMENT OF THE TREASURY

Bureau of Alcohol, Tobacco and Firearms

27 CFR Part 9

RIN 1512-AA07
[Notice No. 853]


Diablo Grande Viticultural Area (97-104)

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Bureau of Alcohol, Tobacco and Firearms (ATF) has received 
a petition proposing the establishment of a viticultural area located 
in the western foothills of Stanislaus County, California to be known 
as ``Diablo Grande.'' The proposed area occupies over 45 square miles, 
or approximately 30,000 acres. The petition was submitted by Dr. 
Vincent E. Petrucci, Sc.D., on behalf of the Diablo Grande Limited 
Partnership, the principal property owner within the proposed 
viticultural area and developers of the Diablo Grande Resort Community.

DATES: Written comments must be received by August 25, 1997.

ADDRESSES: Send written comments to : Chief, Wine, Beer, and Spirits 
Regulations Branch, Bureau of Alcohol, Tobacco and Firearms, P.O. Box 
50221, Washington, DC 20091-0221 (Attn: Notice No. 853). 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 ATF Reading Room, Office of Public 
Affairs and Disclosure, Room 6480, 650 Massachusetts Avenue, NW, 
Washington, DC 20226.

FOR FURTHER INFORMATION CONTACT: David Brokaw, Wine, Beer and Spirits 
Regulations Branch, Bureau of Alcohol, Tobacco and Firearms, 650 
Massachusetts Avenue, NW, Washington, DC 20226, (202) 927-8230.

SUPPLEMENTARY INFORMATION:

Background

    On August 23, 1978, ATF published Treasury Decision ATF-53 (43 FR 
37672, 54624) revising regulations in 27 CFR part 4. These regulations 
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 on wine labels and in wine advertisements. 
On October 2, 1979, ATF published Treasury Decision ATF-60 (44 FR 
56692) which added a new part 9 to 27 CFR, for the listing of approved 
American viticultural areas, the names of which may be used as 
appellations of origin.
    Section 4.25a(e)(1), title 27, CFR, defines an American 
viticultural area as a delimited grape-growing region distinguishable 
by geographic features, the boundaries of which have been delineated in 
subpart C of part 9.
    Section 4.25a(e)(2) outlines the procedure for proposing an 
American viticultural area. Any interested person may petition ATF to 
establish a grape-growing region as a viticultural area. The petition 
should include:
    (a) Evidence that the name of the proposed viticultural area is 
locally and/or nationally known as referring to the area specified in 
the petition;
    (b) Historical or current evidence that the boundaries of the 
viticultural area are as specified in the petition;
    (c) Evidence relating to the geographical characteristics (climate, 
soil, elevation, physical features, etc.) which distinguish the 
viticultural features of the proposed area from surrounding areas;
    (d) A description of the specific boundaries of the viticultural 
area,

[[Page 34028]]

based on features which can be found on United States Geological Survey 
(U.S.G.S.) maps of the largest applicable scale; and
    (e) A copy (or copies) of the appropriate U.S.G.S. map(s) with the 
boundaries prominently marked.

Petition

    The Bureau of Alcohol, Tobacco and Firearms (ATF) has received a 
petition proposing the establishment of a viticultural area located in 
the western foothills of Stanislaus County, California to be known as 
``Diablo Grande.'' The petition was submitted by Dr. Vincent E. 
Petrucci, Sc.D., on behalf of the Diablo Grande Limited Partnership, 
the principal property owner within the proposed viticultural area and 
developers of the Diablo Grande Resort Community. The proposed area 
occupies over 45 square miles, or approximately 30,000 acres. According 
to the petitioner, currently there are 35 acres of grapes planted with 
an additional 17 acres planned for 1997. The petitioner claims that the 
proposed area can accommodate an additional 2700 acres of future grape 
plantings.

Evidence That the Name of the Area is Locally or Nationally Known

    According to the petitioner, the name, ``Diablo Grande,'' has been 
given to this proposed viticultural area because of its proximity to 
Mount Diablo, the highest mountain peak of the Pacific Coast mountain 
range. The petitioner claims that the name, ``Diablo Grande,'' has 
become well-known to the residents of California, and perhaps the 
nation, because of a multitude of newspaper articles regarding 
development of the destination resort and residential community in the 
proposed viticultural area. The resort community has been in existence 
since the early 1990s. To support the name, the petitioner provided 
copies of 21 newspaper articles. With the exception of the Golf Course 
Report, Alexandria, Virginia, all of the articles are from local 
California newspapers. These articles discuss the development of the 
resort and the difficulties encountered by the developers in obtaining 
approval for, and completion of, construction.
    There is, however, some evidence that the area occupied by the 
resort was historically known as the ``Oak Flats Valley.'' Many of the 
articles submitted by the petitioner refer to the area as the ``Oak 
Flats Valley Ranch'' or the ``Oak Flats Valley.'' No evidence was 
provided that the area was tied to Mount Diablo prior to the 
development of the resort. It should be noted that Mount Diablo is 
several counties north of Stanislaus County, the location of the 
proposed area. Therefore, despite the fact the petitioner submitted 
some evidence justifying the use of the name ``Diablo Grande'' for the 
proposed area, ATF is soliciting comments on the propriety of using 
this name.

Historical or Current Evidence That the Boundaries of the Viticultural 
Area Are as Specified in the Petition

    As evidence that the boundaries of the proposed viticultural area 
are as specified in the petition, the petitioner submitted a map 
titled, ``Stanislaus County Vicinity Map'' drawn by Thompson-Hysell 
Engineers. The petitioner also submitted a newspaper article from The 
Modesto Bee dated June 28, 1993, showing the boundary area (map) in 
respect to Interstate Highway 5, the city of Patterson, the City of 
Newman, and the Santa Clara County line. The border for ``Diablo 
Grande'' illustrated on the ``Stanislaus County Vicinity Map'' and the 
maps in the newspaper article are non specific, giving the general 
location within Stanislaus County, California. The Modesto Bee article 
describes the site as being located about five miles west of Interstate 
5 and seven miles southwest of Patterson consisting of gently sloping 
hills to steep ridges in the Diablo Range, an eastern arm of the Coast 
Ranges. The article further describes the site as encompassing portions 
of three major watersheds--Orestimba, Crow, and Salado Creeks.

Evidence Relating to the Geographical Features (Climate, Soil, 
Elevation, Physical Features, etc.) Which Distinguish Viticultural 
Features of the Proposed Area From Surrounding Areas

Climate

    According to the petitioner, in December, 1990, an automata weather 
station was installed at the ``Diablo Grande'' test vineyard site by 
Dr. Charles F. Krauter, professor of soils and water in the Department 
of Plant Science, California State University, Fresno, California. The 
recorded data from the weather station includes temperature (maximum, 
minimum, average, and degree days), rainfall, humidity, solar 
radiation, wind (speed and direction), and evapotranspiration rate.
    The petitioner states that while the above parameters of climate 
are very important, wine grape regions have been classified according 
to heat summation units called degree days. The petitioner provided a 
table of heat summation in degree days illustrating the contrast in 
temperature between the proposed viticultural area and areas 
immediately outside the proposed area. The data was taken from four 
separate weather stations located in Newman (10 miles east), Westley 
(10 miles north), Tracy (25 miles north) and Modesto (30 miles 
northeast). The petitioner chose these areas because they were the 
closest areas with climate records. According to the table, ``Diablo 
Grande'' is 384 degree days warmer than Modesto, 191 degree days cooler 
than Newman, 243 degree days cooler than Tracy, and 1022 degree days 
cooler than Westley. Based on this data the petitioner claims that the 
grapes from the proposed viticultural area would mature slightly 
earlier than those grown in Modesto and would mature slightly later 
than grapes grown in Newman, Westley, or Tracy.
    The petitioner has submitted a four year record of rainfall 
spanning from 1992 to 1995 for the proposed viticultural area. The 
petitioner provided a table illustrating the contrast in monthly and 
annual rainfall in inches between the proposed area and areas 
immediately outside of the proposed area. The rainfall data shows that 
the proposed area has an annual rainfall 13.8% to 22.6% higher than the 
other four areas (Newman, Westley, Modesto, and Tracy). The petitioner 
claims that the higher rainfall in the proposed viticultural area is 
due to its higher elevation (800 to 2600 feet) as compared to the other 
four areas which range in elevation from 40 to 300 feet. According to 
the petitioner, rainfall generally occurs during the winter in all five 
areas, with little or no rainfall during the summer months.
    According to the petitioner, due to its elevation and the 
protective mountains, the proposed area lies above the fog belt in 
contrast with areas immediately outside of the proposed area. In the 
Newman, Patterson, and Westley areas, fog is a common occurrence 
throughout the rainy season in all but the foothill regions. The 
petitioner claims that the absence of fog in the proposed area is a 
unique feature which promotes a much higher quantity of solar radiation 
resulting in the rate of photosynthesis being maximized providing for 
better vine growth and a greater leaf canopy surface.
    According to the petitioner, the predominant wind directions are 
from northeast to northwest in the proposed viticultural area due to 
the orientation of the many mini-valleys encompassing the area and the 
wind deflection caused by the hills surrounding these mini-valleys. The 
petitioner claims that this is a unique feature of the proposed 
viticultural area's micro-climate as

[[Page 34029]]

contrasted with the Newman/Westley areas where the reverse is true with 
the predominant winds coming from the northwest, typical of the flat 
lands outside of the proposed viticultural area's perimeter.

Soils

    According to the petitioner, the soil characteristics of the 
proposed viticultural area are not only different and distinct from 
those of the lower foothills and Central Valley to the east and north, 
but they are also different from other areas of the Diablo Range to the 
south and west of the proposed viticultural area.
    The petitioner provided a general description of the soils in the 
form of a report entitled, ``Diablo Grande Specific Plan Draft 
Environmental Impact Report'' prepared by LSA Associates, Inc., Pt. 
Richmond, California for the Stanislaus County Department of Planning 
and Community Development. The petitioner also submitted a report from 
the Soil Conservation Service which recently mapped soils within the 
proposed viticultural area and identified 16 major soil types.
    Finally, the petitioner states that extensive soil sampling and 
detailed analysis (both physical and chemical) have been conducted at 
two different locations within the proposed viticultural area. 
According to the petitioner, in December of 1989, thirteen samples were 
taken at various sites in the vicinity of the Oak Flat Ranch. In May of 
1996, fourteen samples from Isom Ranch were collected and analyzed. A 
copy of these analysis was included with the petition.
    The petitioner claims that these reports show that a majority of 
the soils found in the proposed viticultural area are composed of the 
following series listed in approximate order of occurrence: Arburua 
loam, Wisflat sandy loam, Contra Costa clay loam, and San Timoteo sandy 
loam, with lesser amounts of Zacharias clay loam and gravelly clay 
loam. According to the petitioner, most of the soils are complexes made 
up of two or more of these series as well as occasional rock outcrops 
of exposed sandstone and shale. The petitioner claims that in these 
complexes, the soil series are so intimately intermixed that it is not 
practical to separate them geographically.
    The petitioner asserts that the reports show that the soils within 
the proposed viticultural area typically have slopes ranging from 30% 
to 75% and elevations from 400 to 2700 feet. An exception is the 
relatively minor Zacharias series which has slopes of 2% to 5% and 
elevations of 200 to 400 feet. The soils in the proposed viticultural 
area are derived from sandstone and vary from shallow to very deep with 
most of the complexes showing moderate depth. The soils are well-
drained to somewhat excessively-drained. Permeability varies from slow 
to moderately rapid, surface run-off rates are rapid and, according to 
the petitioner, the potential for water erosion can be severe. The 
petitioner provided a table giving a complete description of the 
characteristics for each soil type.
    In contrast to the soils of the proposed viticultural area, the 
petitioner claims that the soils of the surrounding areas are largely 
composed of different soil series with different characteristics, 
including elevations and slopes. The petitioner provided an exhibit 
defining the various soil series and soil types, and an exhibit with 
aerial photographic maps showing soil type location by map numbers.
    While most of the soil series which are found within the proposed 
viticultural area can also be found in the nearby surrounding areas, 
the petitioner claims that these series represent very small portions 
of the total in those surrounding areas. Additionally, the petitioner 
states that many of the soil series which make up the major soil types 
of the surrounding areas are not found at all within the proposed area. 
The petitioner states that these soil types include Capay clay, 
Vernalis clay loam, Stomar clay loam, Chaqua clay loam, Calla clay 
loam, Carbona clay, Alo clay, Vaquero clay, El Salado loam and fine 
sandy loam. According to the petitioner, these series are found to the 
east and north of the proposed viticultural area. The petitioner states 
that most of these series have slopes of 0% to 2% and elevations of 25 
to 400 feet with four of these series having slopes up to 8%, 15%, 30%, 
and 50% respectively and elevations from 300 to 1600 feet.
    The petitioner states that there is another major difference 
between the proposed viticultural area soils and most of those to the 
east and north. The ``Diablo Grande'' soils are residual soils formed 
from sedimentary deposits of sandstone and calcareous sandstone while 
most of the surrounding soils are from alluvial deposits of mixed rock 
parent material having lower slopes and elevations.
    According to the petitioner, the area surrounding the proposed 
viticultural area to the west and south includes the Orestimba Creek 
Canyon beyond which lies a more rugged portion of the Diablo Range. 
Much of the land directly west of the proposed area is part of the 
Henry W. Coe State Park and although this area includes some of the 
same soil series as the proposed area, there are also many new series 
including Gonzaga clay, Honker clay, Franciscan clay loam, Vellecitos 
clay, Gaviota gravelly loam, Henneke clay, Hentine loam, and Hytop 
clay. The petitioner states that these soils generally have slopes of 
30% to 75% and elevations of 700 to 3300 feet.
    According to the petitioner, the results of these soil analyses and 
the characteristics of the soil types found in the proposed 
viticultural area, in combination with the climate and topography and 
the use of drip irrigation, not only make the proposed viticultural 
area suitable for the production of wine grapes but also make it a 
unique and singular viticultural area which is completely distinctive 
from the surrounding area.

Topography

    According to the petitioner, the geography of the proposed 
viticultural area sets it apart from the surrounding areas in several 
respects. Three main water courses traverse the area: Salado Creek, 
Crow Creek, and Orestimba Creek. Salado and Crow Creek traverse the 
area from the vicinity of Mikes Peak along the western boundary of the 
proposed area, northeast and east respectively, toward Interstate 5. 
Orestimba Creek traverses the southwestern and southern boundary line 
as it flows eastward.
    The petitioner claims that current vineyard plantings are at 
elevations ranging from 1000 feet msl near the vineyard located in the 
vicinity of the Oak Flat Ranch to 1800 feet msl at the Isom Ranch. The 
petitioner states that these vineyard site elevations are the highest 
elevations where grapes are grown in Stanislaus County. The petitioner 
contrasts this with other Stanislaus County vineyards outside the 
proposed area where grapes are grown at elevations ranging from 70 to 
90 feet at Modesto to 300 to 340 feet at the base of the foothills near 
Patterson where a newly planted vineyard (1996) of 90 acres exists 
approximately 4.2 miles east of the proposed viticultural area 
boundary. The petitioner distinguishes this vineyard site from the 
proposed viticultural area by noting that the Patterson site is 340 
feet lower and has a soil type which is all Vernalis-Zacharias complex 
with 0% to 2% slopes. The petitioner claims that these conditions do 
not exist in the proposed viticultural area.
    The petitioner also notes that the topographic features of the 
proposed viticultural area include many ``mini-

[[Page 34030]]

 valleys'' as a result of its mountainous structure. The petitioner 
states that this provides several attributes not found in the vineyards 
planted on the flat lands in the interior of Stanislaus County. Grapes 
grown on the terraced hillsides of the proposed area are subject to a 
mesoclimate (or topoclimate or site climate) which can vary from the 
general macroclimate due to differences mainly in elevation and slope. 
Thus, according to the petitioner, site selection becomes an important 
feature when working with this type of topography as contrasted to the 
flat lands of 1% to 2% slopes. According to the petitioner, there is 
the opportunity to grow grapes on slopes (15%-30%) that have western, 
eastern, southern, or northern exposure or any combination of all four 
slope exposures.
    According to the petitioner, while degree days associated with a 
macroclimate may be similar to that of a mesoclimate, it is the makeup 
of the mesoclimate of the proposed viticultural area that makes its 
climate different from that of the surrounding areas. The petitioner 
provided a diagram purporting to show how mesoclimates are influenced 
by sloping contour topography. According to the petitioner, the 
southern and western slopes receive a greater exposure to sunshine and, 
therefore, accumulate more heat units than the northern or eastern 
slopes. The petitioner claims that it is this difference in sunshine 
and heat that makes the proposed viticultural area's mesoclimate. 
According to the petitioner, grapes grown on all four slope exposures, 
when harvested together and crushed as one lot, make wines that differ 
considerably from grapes grown on the lower elevation flat lands. The 
petitioner claims that this is the key factor which makes the proposed 
viticultural area wines distinct from those of the surrounding area. In 
support of this claim the petitioner provided several letters from 
staff members at the Viticulture and Enology Research Center, 
California State University, Fresno and winemakers. These letters 
indicate that wines made from grapes grown in the proposed viticultural 
area exhibit characteristics distinctive enough to deserve 
consideration for a specific appellation.

Boundaries

    The boundary of the proposed viticultural area may be found on four 
United States Geological Survey Quadrangle 7.5 minute series 
(Topographic) maps, entitled Patterson Quadrangle, California--
Stanislaus Co., Copper Mtn. Quadrangle, California--Stanislaus Co., 
Wilcox Ridge, California, Stanislaus Co., and Orestimba Peak, 
California--Stanislaus Co.

Public Participation--Written Comments

    ATF requests comments from all interested persons. 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.
    ATF is particularly interested in comments concerning the propriety 
of using the name ``Diablo Grande'' for this proposed viticultural area 
since there appears to be no evidence that this name was associated 
with this area prior to the construction of the resort.
    ATF will not recognize any submitted material as confidential and 
comments may be disclosed to the public. Any material which the 
commenter considers to be confidential or inappropriate for disclosure 
to the public should not be included in the comments. The name of the 
person submitting a comment is not exempt from disclosure.
    Comments may be submitted by facsimile transmission to (202) 927-
8602, provided the comments: (1) are legible; (2) are 8\1/2\'' x 11'' 
in size, (3) contain a written signature, and (4) are three pages or 
less in length. This limitation is necessary to assure reasonable 
access to the equipment. Comments sent by FAX in excess of three pages 
will not be accepted. Receipt of FAX transmittals will not be 
acknowledged. Facsimile transmitted comments will be treated as 
originals.
    Any person who desires an opportunity to comment orally at a public 
hearing on the proposed regulation should submit his or her request, in 
writing, to the Director within the 60-day comment period. The 
Director, however, reserves the right to determine, in light of all 
circumstances, whether a public hearing will be held.
    After consideration of all comments and suggestions, ATF may issue 
a Treasury decision. The proposals discussed in this notice may be 
modified due to comments and suggestions received.

Paperwork Reduction Act

    The provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 
3507 (j)) and its implementing regulations, 5 CFR part 1320, do not 
apply to this notice because no requirement to collect information is 
proposed.

Regulatory Flexibility Act

    It is hereby certified that this proposed regulation will not have 
a significant economic impact on a substantial number of small 
entities. 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 a particular area. No new requirements are proposed. 
Accordingly, a regulatory flexibility analysis is not required.

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.

Drafting Information

    The principal author of this document is David W. Brokaw, Wine, 
Beer, and Spirits Regulations Branch, Bureau of Alcohol, Tobacco and 
Firearms.

List of Subjects in 27 CFR Part 9

    Administrative practices and procedures, Consumer protection, 
Viticultural areas, 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 Sec. 9.156 to read as 
follows:


Sec. 9.156  Diablo Grande.

    (a) Name. The name of the viticultural area described in this 
section is ``Diablo Grande.''
    (b) Approved maps. The appropriate maps for determining the 
boundary of the Diablo Grande viticultural area are the following four 
U.S.G.S. Quadrangle 7.5 Minute Series (Topographic) maps. They are 
titled:
    (1) Patterson Quadrangle, California--Stanislaus Co., 1953 
(Photorevised 1971, Photoinspected 1978).
    (2) Copper Mtn. Quadrangle, California--Stanislaus Co., 1953 (Field 
Check 1956, Aerial Photo 1971).
    (3) Wilcox Ridge, California--Stanislaus Co., 1956 (Photorevised 
1971).

[[Page 34031]]

    (4) Orestimba Peak, California--Stanislaus Co., 1955 (Photorevised 
1971).
    (c) Boundary. The Diablo Grande viticultural area is located in the 
western foothills of Stanislaus County, California. The beginning point 
is at Reservoir Spillway 780 in section 8, Township 6 South, Range 7 
East (T. 6S., R. 7E.) on the Patterson Quadrangle U.S.G.S. map.
    (1) Then proceed northwest to Salt Grass Springs to the point where 
the 1000 foot contour line crosses the northern section line of section 
9, T. 6S., R. 6E., on the Copper Mtn., Quadrangle U.S.G.S. map.
    (2) Then proceed due south past Copper Mountain in section 16, T. 
6S., R. 6E., to Mikes Peak in section 4, T. 7S., R. 6E., on the Wilcox 
Ridge Quadrangle U.S.G.S. map.
    (3) Then proceed due west to Oristimba Creek in section 6, T. 7S., 
R. 6E.
    (4) Then proceed following Orestimba Creek south/southeast and then 
east/northeast to the point where Orestimba Creek meets Bench Mark #340 
in section 28, T. 7S., R. 7E., on the Orestimba Peak Quadrangle 
U.S.G.S. map.
    (5) Then proceed northwest to the point of beginning at Reservoir 
Spillway 780 in section 8, T. 6S., R. 7E.

    Signed: June 13, 1997.
John W. Magaw,
Director.
[FR Doc. 97-16491 Filed 6-23-97; 8:45 am]
BILLING CODE 4810-31-P