[Federal Register Volume 65, Number 143 (Tuesday, July 25, 2000)]
[Proposed Rules]
[Pages 45739-45742]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 00-18732]


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DEPARTMENT OF THE TREASURY

Bureau of Alcohol, Tobacco and Firearms

27 CFR Part 9

[Notice No. 900]
RIN 1512-AA07


Fair Play Viticultural Area (2000R-170P)

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

ACTION: Notice of proposed rulemaking.

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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,

[[Page 45740]]

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

[[Page 45741]]

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 8\1/2\"  x  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, 8\1/
2\"  x  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.

[[Page 45742]]

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. 9.168 to read as 
follows:
* * * * *


Sec. 9.168  Fair Play.

    (a) Name. The name of the viticultural area described in this 
section is ``Fair Play.''
    (b) Approved Maps. The appropriate maps for determining the 
boundary of the Fair Play viticultural area are three United States 
Geological Survey (U.S.G.S.) topographic maps (7.5 minute series; 
quadrangles). They are titled:
    (1) ``Omo Ranch, California,'' 1952 (photorevised 1973).
    (2) ``Aukum, California,'' 1952 (photorevised 1973).
    (3) ``Camino, California,'' 1952 (photorevised 1973).
    (c) Boundaries. The Fair Play viticultural area is located in El 
Dorado County, California and is located entirely within the existing 
Sierra Foothills and El Dorado viticultural areas. The boundary for 
Fair Play is as follows:
    (1) The beginning point of the boundary is the intersection of the 
Middle Fork of the Cosumnes River and the U.S.G.S. map section line 
between Sections 26 and 27, T. 9 N., R. 11 E. (``Aukum'' Quadrangle);
    (2) From the beginning point, the boundary follows northeast along 
the Middle Fork of the Cosumnes River until it meets an unnamed medium-
duty road (Mt. Aukum Road or El Dorado County Road E-16) just as it 
crosses onto the ``Camino'' Quadrangle map;
    (3) The boundary continues then northeast along Mt. Aukum Road to 
its intersection with Grizzly Flat Road at the town of Somerset 
(``Camino'' Quadrangle);
    (4) The boundary continues east and then southeast along Grizzly 
Flat Road to its intersection with the U.S.G.S. map section line 
between Sections 15 and 16, T. 9 N., R. 12 E. (``Camino'' Quadrangle):
    (5) The boundary then proceeds south along the U.S.G.S. map section 
line between Sections 15 and 16, T. 9 N., R. 12 E., to its intersection 
with the Middle Fork of the Cosumnes River (``Aukum'' Quadrangle);
    (6) The boundary then follows along the Middle Fork of the Cosumnes 
River in a southeasterly direction onto the ``Omo'' Quadrangle map and 
continues until it meets the range line between R. 12 E. and R. 13 E. 
(``Aukum'' Quadrangle and ``Omo Ranch'' Quadrangle);
    (7) The boundary then follows south along the range line between R. 
12 E. and R. 13 E. to its intersection with an unnamed medium-duty road 
in T. 8 N. (Omo Ranch Road) (``Omo Ranch'' Quadrangle);
    (8) The boundary then continues west in a straight line 
approximately 0.3 miles to the point where Cedar Creek intersects with 
the 3200-foot contour line, within Section 1, T. 8 N.,R. 12 E. (``Omo 
Ranch'' Quadrangle);
    (9) The boundary follows along Cedar Creek west and then southwest 
until it empties into Scott Creek (``Aukum'' Quadrangle);
    (10) The boundary then proceeds west along Scott Creek until it 
empties into the South Fork of the Cosumnes River (``Aukum'' 
Quadrangle);
    (11) The boundary continues west along the South Fork of the 
Cosumnes River to its intersection with the U.S.G.S. map section line 
between Sections 14 and 15, T. 8 N., R. 11 E. (``Aukum'' Quadrangle); 
and
    (12) Finally, the boundary follows north along the section line 
back to its intersection with the Middle Fork of the Cosumnes River, 
the point of the beginning. (``Aukum'' Quadrangle).

    Approved: July 18, 2000.
Bradley A. Buckles,
Director.
[FR Doc. 00-18732 Filed 7-24-00; 8:45 am]
BILLING CODE 4810-31-P