[Federal Register Volume 74, Number 82 (Thursday, April 30, 2009)]
[Proposed Rules]
[Pages 19917-19920]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-9855]


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DEPARTMENT OF THE TREASURY

Alcohol and Tobacco Tax and Trade Bureau

27 CFR Part 9

[TTB Docket No. 2007-0060; Notice No. 94; Re: Notice Nos. 71 and 72]
RIN 1513-AB27


Proposed Establishment of the Paso Robles Westside Viticultural 
Area (2006R-087P)

AGENCY: Alcohol and Tobacco Tax and Trade Bureau, Treasury.

ACTION: Withdrawal of notice of proposed rulemaking.

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SUMMARY: The Alcohol and Tobacco Tax and Trade Bureau announces the 
withdrawal of its proposal to establish the Paso Robles Westside 
viticultural area within the existing Paso Robles viticultural area in 
San Luis Obispo County, California. We take this action because, given 
the conflicting information before us, we cannot conclude that a 
delimited grape-growing region exists that is recognized by the name 
Paso Robles Westside.

DATES: Notice No. 71 is withdrawn as of April 30, 2009.

FOR FURTHER INFORMATION CONTACT: N. A. Sutton, Regulations and Rulings 
Division, Alcohol and Tobacco Tax and Trade Bureau, 925 Lakeville St., 
158, Petaluma, CA 94952; telephone 415-271-1254.

SUPPLEMENTARY INFORMATION: 

Background

TTB Authority

    Section 105(e) of the Federal Alcohol Administration Act (FAA Act), 
27 U.S.C. 205(e), authorizes the Secretary of the Treasury to prescribe 
regulations for the labeling of wine, distilled spirits, and malt 
beverages. The FAA Act provides that these regulations should, among 
other things, prohibit consumer deception and the use of misleading 
statements on labels, and ensure that labels provide the consumer with 
adequate information as to the identity and quality of the product. The 
Alcohol and Tobacco Tax and Trade Bureau (TTB) administers the 
regulations promulgated under the FAA Act.
    Part 4 of the TTB regulations (27 CFR part 4) allows the 
establishment of definitive viticultural areas and the use of their 
names as appellations of origin on wine labels and in wine 
advertisements. Part 9 of the TTB regulations (27 CFR part 9) sets 
forth standards for petitions for the establishment of viticultural 
areas and contains the list of approved viticultural areas.

Definition

    Section 4.25(e)(1)(i) of the TTB regulations (27 CFR 4.25(e)(1)(i)) 
defines a viticultural area for American wine as a delimited grape-
growing region distinguishable by geographical features, the boundaries 
of which have been recognized and defined in part 9 of the regulations. 
These designations allow vintners and consumers to attribute a given 
quality, reputation, or other characteristic of a wine made from grapes 
grown in an area to its geographic origin. The establishment of 
viticultural areas allows vintners to describe more accurately the 
origin of their wines to consumers and helps consumers to identify 
wines they may purchase. Establishment of a viticultural area is 
neither an approval nor an endorsement by TTB of the wine produced in 
that area.

Requirements

    Section 4.25(e)(2) of the TTB regulations outlines the procedure 
for proposing an American viticultural area and provides that any 
interested party may petition TTB to establish a grape-growing region 
as a viticultural area. Section 9.3(b) of the TTB regulations requires 
the petition to include--
    <bullet> Evidence that the proposed viticultural area is locally 
and/or nationally known by the name specified in the petition;
    <bullet> Historical or current evidence that supports setting the 
boundary of the proposed viticultural area as the petition specifies;
    <bullet> Evidence relating to the geographic features, such as 
climate, soils, elevation, and physical features, that distinguish the 
proposed viticultural area from surrounding areas;

[[Page 19918]]

    <bullet> A description of the specific boundary of the proposed 
viticultural area, based on features found on United States Geological 
Survey (USGS) maps; and
    <bullet> A copy of the appropriate USGS map(s) with the proposed 
viticultural area's boundary prominently marked.

Publication of Notice No. 71

    On January 24, 2007, TTB published Notice No. 71, a notice of 
proposed rulemaking, in the Federal Register (72 FR 3088) regarding the 
proposed establishment of the ``Paso Robles Westside'' American 
viticultural area in northern San Luis Obispo County, California. We 
undertook that action in response to a petition filed on behalf of 21 
vintners and grape growers with interests in the proposed viticultural 
area. As outlined in Notice No. 71, the proposed Paso Robles Westside 
viticultural area lay west of the Salinas River but entirely within the 
existing Paso Robles viticultural area (27 CFR 9.84), which in turn is 
entirely within the existing, multi-county Central Coast viticultural 
area (27 CFR 9.75).
    Comments on the proposed Paso Robles Westside viticultural area 
were originally due on or before March 26, 2007. However, on March 23, 
2007, in response to a request from other Paso Robles wine industry 
members, we extended the comment period for Notice No. 71 until April 
24, 2007 (see Notice No. 72 published in the Federal Register at 72 FR 
13720 on March 23, 2007).
    Shortly before publication of Notice No. 71, TTB received 12 
petitions from the Paso Robles AVA Committee (PRAVAC), one of which 
proposed the expansion of the existing Paso Robles viticultural area 
and 11 of which proposed the establishment of 11 smaller viticultural 
areas within the expanded Paso Robles viticultural area.

Comments Received in Response to Notice No. 71

    TTB received 220 comments in response to Notice No. 71. Of those, 
144 supported the establishment of the proposed Paso Robles Westside 
viticultural area, 61 opposed it, and, of the remaining 15 commenters, 
2 requested an extension of time to comment and 13 provided comments 
that could not be described as clearly supporting or opposing the 
proposal. The 144 supporting comments included 19 from grape growers 
and/or wine producers and 125 from other sources. Of the 61 opposing 
comments, 43 were from grape growers and/or wine producers, including a 
single comment from the 59-member PRAVAC. The remaining 18 opposing 
comments were from other sources. These comments are posted under 
Notice No. 71 on the TTB Web site at http://www.ttb.gov/wine/wine_rulemaking.shtml.

Supporting Comments

    The 19 grape growers and/or wine producers supporting the 
establishment of the Paso Robles Westside viticultural area agree that 
the proposed area's topography, climate, and soils are different from 
the rest of the existing Paso Robles viticultural area and that the 
area is therefore deserving of separate recognition under the Paso 
Robles Westside name.
    Doug Beckett, the owner of Peachy Canyon Winery and the proposed 
Paso Robles Westside lead petitioner, submitted two strongly supportive 
comments (numbered by TTB as comments 55 and 128) for the area's 
establishment. In comment 55, he largely reiterates the petition's 
evidence and conclusions. He states, for example, that the soil 
analysis report included in the petition found that the ``soils 
contained in the Proposed Paso Robles Westside AVA are unique to the 
area.'' In comment 128, Mr. Beckett argues that the Paso Robles 
Westside viticultural area petition does not conflict with the separate 
PRAVAC effort to expand the existing Paso Robles viticultural area and 
then sub-divide the resulting larger Paso Robles viticultural area into 
11 smaller viticultural areas.
    Other Paso Robles grape growers and wine producers agree with Mr. 
Beckett. For example, Robert Hartenberger of Midnight Cellars (comment 
80) and Bob Shore of Arroyo Robles Winery (comment 84) state that the 
proposed Paso Robles Westside viticultural area's climate, topography, 
soils, and name recognition contrast with the east side of the existing 
Paso Robles viticultural area, and the Paso Robles Westside region is 
therefore deserving of its own viticultural area designation.
    In addition, some Paso Robles wine industry members express concern 
over the misuse of the ``Westside'' name. Noting that his winery uses 
the ``Westside'' claim on some wines, Erich Russell of Rabbit Ridge 
Winery (comment 71), states that another winery uses the ``West side'' 
name on a wine made from non-West side, and even non-Paso Robles, 
grapes. He states, therefore, that TTB should approve the Westside 
petition to stop the misuse of the Paso Robles Westside name. Gary 
Conway of Carmody McKnight Estate Wines (comment 114) notes that the 
proposed area's establishment would allow those within the area ``to 
determine their own viticultural future,'' and that ``if there are some 
within the area who don't wish to adopt the name, there is such a 
simple solution for them. Don't use it.''
    The 125 other supportive commenters include wine consumers familiar 
with the Paso Robles viticultural area, as well as wine distributors, 
retailers, and sales personnel. Some comments largely focus on the 
distinctive taste of wines produced on the west side of the existing 
Paso Robles viticultural area, while others note the rolling topography 
and distinguishable climate and soils to the west of the Salinas River. 
Some commenters argue that, based on the 100-plus year history of the 
``Westside'' name, recognition of the Paso Robles Westside viticultural 
area is long overdue and that its establishment would enhance the 
entire Paso Robles region's wine industry. Additional commenters offer 
support for evidence contained in the Westside petition, including its 
soil analysis section.

Opposing Comments

    As noted above, TTB received 61 comments opposing the establishment 
of the Paso Robles Westside viticultural area. Of those, 43 comments 
were from grape growers and/or wine producers with interests in the 
existing Paso Robles viticultural area. In general, these 43 commenters 
note the location of their vineyards and describe significant 
variations in climate, geology, soil, and topography within the 
proposed Paso Robles Westside viticultural area. Some of these 
commenters also describe the viticultural similarities between the west 
and east sides of the existing Paso Robles viticultural area.
    The 43 grape growers and/or wine producer commenters included two 
persons who withdrew their names from the Paso Robles Westside petition 
and two persons who were among the original 1982 Paso Robles 
viticultural area petitioners.
    Elizabeth Van Steenwyck of Adelaida Cellars (comment 121) and 
Justin Baldwin of Justin Vineyards (comment 124) withdrew their names 
as supporting petitioners for the proposed Paso Robles Westside 
viticultural area. After indicating her specific reasons for her 
withdrawal of support for the Westside petition, Ms. Van Steenwyck 
concludes: ``The establishment of a Paso Robles Westside AVA has 
little, if any, viticultural relevance, lacks geographic definition, 
and will not serve the best interests of the entire Paso Robles wine 
community in the long term.'' Mr. Baldwin states that the PRAVAC 
proposal ``is more comprehensive and is

[[Page 19919]]

based on more sound and substantial scientific, historic, and climatic 
data.''
    Gary Eberle (comment 86) and Herman Schwartz (comment 134), who 
were original 1982 Paso Robles viticultural area petitioners, also 
submitted comments opposing Notice No. 71. These commenters note the 
diversity of the proposed Paso Robles Westside viticultural area's 
climate and geography and object to the use of the Salinas River as its 
proposed eastern boundary line. Also, they state that ``Paso Robles 
Westside,'' as a geographical term, could mislead consumers. Charging 
that the Paso Robles Westside petition uses ``cherry picked'' data and 
information, Mr. Eberle states: ``When we created such a large and 
diverse AVA we knew that down the line there would be a movement to 
create smaller AVAs within the area * * * based on sound viticultural 
and scientific information. Unfortunately, an application for the Paso 
Robles Westside AVA has been filed that is the antithesis of this.'' 
Concerning geographical diversity, Mr. Schwartz remarked: ``Most 
experienced wine people in our area are keenly aware of the vast 
differences in the proposed new Westside appellation that runs the 
gamut from one of the hottest, flattest and driest areas in the entire 
North County of San Luis Obispo to one of the more moderate in 
temperature, slightly rolling hills and the highest rainfall in our 
county, let alone the varieties of soil types and the quantity and 
quality of the water.''
    While most opposing commenters supported other plans to divide the 
existing Paso Robles viticultural area into smaller viticultural areas, 
some did not. For example, Richard Sauret, president of the Independent 
Grape Growers of the Paso Robles Area, a group of 195 growers, states 
(comment 213): ``As a native of Paso Robles and a grape grower for 55 
years I didn't think I would ever see a political fiasco of this 
magnitude in Paso Robles.'' Mr. Sauret opposes all efforts to sub-
divide the existing Paso Robles viticultural area, including the Paso 
Robles Westside petition and the petitions submitted by the PRAVAC.
    The PRAVAC submitted a lengthy opposing comment (comment 98) on 
behalf of its 59 grape-grower and winery members. According to PRAVAC, 
its members farm approximately 1,700 acres and own 15 wineries in the 
portion of the existing Paso Robles viticultural area that is west of 
the Salinas River. As noted above, the PRAVAC submitted a petition to 
TTB to expand the existing Paso Robles viticultural area and 11 
petitions to sub-divide the area, as expanded, into smaller 
viticultural areas. The PRAVAC notes that 5 of the 11 proposed smaller 
viticultural areas lie wholly or partially west of the Salinas River, 
that is, within the proposed Paso Robles Westside viticultural area. 
Two of those proposed viticultural areas lie on both the east and west 
sides of the Salinas River and thus would overlap the proposed Paso 
Robles Westside viticultural area, and the other three lie wholly 
within it.
    The ``Westside'' name, according to the PRAVAC, is not locally or 
nationally known to refer to the proposed viticultural area and is 
confusing, misapplied, and inappropriate in the context of the 
petition. The ``Westside'' name, the PRAVAC states, refers to a much 
smaller area, limited to a portion of the City of Paso Robles and the 
entire Adelaida District, but not extending to the northern or southern 
limits of the proposed Paso Robles Westside viticultural area boundary 
line.
    The PRAVAC claims that the Paso Robles Westside viticultural area 
petition lacks adequate scientific support and justification. The 
PRAVAC notes that its research shows that the climate and geographic 
features of the proposed Paso Robles Westside viticultural area fail to 
distinguish it from the Paso Robles area east of the Salinas River. In 
support of this contention, the PRAVAC comment includes a point-by-
point rebuttal of the Paso Robles Westside petition researched and 
written by Dr. Deborah Elliott-Fisk, an ecology professor at the 
University of California, Davis. Dr. Elliott-Fisk explains that she 
conducted recent in-depth scientific research of the Paso Robles 
viticultural area that contributed to the development of the one 
expansion petition and the 11 new establishment petitions submitted by 
the PRAVAC.
    Dr. Elliott-Fisk argues that the Salinas River does not divide the 
existing Paso Robles viticultural area into two distinct east-west 
regions based on climate, geology, soils, topography, elevation, 
landforms, or natural vegetation. She states that viticultural 
conditions within the existing Paso Robles viticultural area change 
from north to south instead of from east to west. Noting that climates 
change along gradients in latitude, longitude, maritime and continental 
position, elevation, orographic position, and other physical 
parameters, Dr. Elliott-Fisk states that the existing Paso Robles 
viticultural area ``shows incredible diversity in vineyard geographics 
and viticultural environments, from an almost desert climate in the 
north to a maritime climate in the central portion to a cold, wet 
mountain climate to the south.'' In addition, she also contends that no 
soil series found in the proposed Paso Robles Westside viticultural 
area is unique to that area. Based on her research, Dr. Elliott-Fisk 
concludes that ``[t]he proposed Paso Robles Westside viticultural area 
makes no sense from a historical, geographical, or viticultural 
perspective'' and that ``[t]he flawed and deficient petition does not 
support the establishment of the proposed Paso Robles Westside AVA.''
    The PRAVAC comment thus urges TTB to reject the Paso Robles 
Westside viticultural area petition. As an alternative, PRAVAC suggests 
TTB consolidate into one public notice the Paso Robles Westside 
viticultural area petition with the 12 PRAVAC petitions to expand and 
sub-divide the existing Paso Robles viticultural area. The commenter 
also requested a public hearing if TTB decides to proceed with 
rulemaking for the Paso Robles Westside viticultural area.
    Other opposing grape growers and wine producers also comment that 
the supporting data for the Paso Robles Westside viticultural area 
petition is, at times, inadequate or wrong. They believe that the 
scientific data provided in the petition does not support establishment 
of the Paso Robles Westside viticultural area. They also note that the 
climate, soils, elevation, natural vegetation, and other geographical 
features of the proposed Paso Robles Westside viticultural area fail to 
distinguish it from other parts of the larger Paso Robles viticultural 
area. Further, some commenters state that the cooling marine influence 
coming through the Templeton Gap affects certain portions of the 
proposed viticultural area more than other areas, and that the marine 
influence significantly affects some portions of the Paso Robles 
viticultural area east of the Salinas River.
    According to comments of some opposing wine industry members, the 
Salinas River, as the eastern boundary line for the proposed Paso 
Robles Westside boundary line, is an over-simplification of regional 
viticultural differences that could have long-range negative 
implications for other Paso Robles viticultural area petitions. Other 
commenters claim the ``Westside'' name is ambiguous or vague and could 
confuse and mislead consumers.
    The 18 opposing commenters who are neither grape growers nor wine 
producers include wine consumers, local residents, and scientists with 
expertise in climate, soil and geology. Some of these commenters 
describe the Paso Robles Westside viticultural area

[[Page 19920]]

petition as a wine industry marketing effort. A local resident states 
that the proposed Paso Robles Westside viticultural area ``includes a 
wide diversity of land, climate, geology and soils as to be a 
completely arbitrary division.'' Other commenters contend, similar to 
the PRAVAC, that the recognized ``west side'' of the Paso Robles region 
encompasses only a western portion of the City of Paso Robles and the 
Adelaida District, not the significantly larger proposed Paso Robles 
Westside viticultural area.
    Dr. Thomas Rice, a certified professional soil scientist who 
provided soil information for the Paso Robles Westside viticultural 
area petition, submitted two comments opposing Notice No. 71 (comments 
94 and 129). In his opposing comments, Dr. Rice states that some of his 
soils information ``has been inaccurately quoted'' and that ``some 
erroneous conclusions regarding the soils in the Paso Robles AVA have 
been stated in the final petition.'' He adds that ``not a single soil 
series mapped by the USDA that occurs within the proposed Paso Robles 
Westside AVA is unique to that area.'' He concludes by urging TTB ``to 
reject the Paso Robles Westside petition based on its inaccurate, 
misleading and false statements related to topography and soils 
diversity within the larger Paso Robles AVA.''
    Opposing commenter Richard Hoenisch (comment 112), a plant 
pathologist at the University of California, Davis, and the education 
director for the western region of the National Plant Diagnostic 
Network, explains that he served for six years as the founding manager 
of the Tablas Creek Winery in Paso Robles. Mr. Hoenisch states that, 
based on his past and current experience and knowledge, the proposed 
Paso Robles Westside viticultural area ``includes too many different 
geologies, soil types, and micro-climates.'' Mr. Hoenisch concludes 
that the Paso Robles area contains many distinct and excellent 
potential viticultural area sites.
    Mr. Donald Schucraft, a certified consulting meteorologist with the 
Western Weather Group, explains in his opposing comment (comment 122) 
that in the mid-1990's he led a team of meteorologists and physical 
scientists that established a network of automated weather stations in 
the Paso Robles region, and that these stations continue to provide key 
information for localized Paso Robles weather forecasts. Based on the 
data from these stations, Mr. Schucraft states that the Salinas River 
does not provide a suitable boundary line for the many different 
microclimates found in the Paso Robles viticultural area. He notes that 
there are distinct microclimates to the west of the Salinas River 
within the proposed Paso Robles Westside viticultural area, and that 
these microclimates change from north to south as well as to east to 
west.
    Seasonal rainfall, according to Mr. Schucraft, varies from 11 to 12 
inches in the northern-most part of the proposed Paso Robles Westside 
viticultural area to 27 to 28 inches in the southern-most part. Also, 
air temperatures, influenced by the marine air passing through the 
Templeton Gap, and wind speeds, influenced by the Salinas River Valley 
Basin, vary widely within the proposed viticultural area. Mr. Schucraft 
concludes that observed weather in the Paso Robles region fails to 
define the proposed Paso Robles Westside viticultural area as a single 
viticultural region, but instead supports the existence of multiple 
viticultural regions within the existing Paso Robles viticultural area.

TTB Finding

    TTB notes that there is a marked lack of unanimity among the 
commenters concerning the appropriateness of establishing the proposed 
Paso Robles Westside viticultural area. While substantial petition 
evidence and a large number of comments support the establishment of 
the proposed viticultural area, we also received a significant number 
of comments setting forth information that refutes, or is otherwise 
inconsistent with that petition evidence. Some of those comments 
challenge the appropriateness of the Paso Robles Westside name. Other 
commenters, including scientific experts, contradict the geographical 
feature evidence presented in the petition and relied upon by TTB in 
Notice No. 71 as a basis for proposing the establishment of the Paso 
Robles Westside viticultural area.
    Given the conflicting information before us, we cannot conclude 
that a delimited grape-growing region exists that is recognized by the 
name ``Paso Robles Westside,'' or that the area described in Notice No. 
71 is distinguishable by geographical features. Accordingly, TTB hereby 
withdraws its proposal to establish the Paso Robles Westside 
viticultural area.
    With regard to the petitions submitted by the PRAVAC to establish 
11 smaller viticultural areas within the Paso Robles viticultural area, 
TTB will review those 11 petitions independently from this regulatory 
action. A notice regarding the PRAVAC proposal to expand the existing 
Paso Robles viticultural area was published in the Federal Register on 
July 15, 2008 (see Notice No. 85, 73 FR 40474).

    Signed: February 12, 2009.
John J. Manfreda,
Administrator.
    Approved: February 27, 2009.
Timothy E. Skud,
Deputy Assistant Secretary (Tax, Trade, and Tariff Policy).
[FR Doc. E9-9855 Filed 4-29-09; 8:45 am]
BILLING CODE 4810-31-P