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###### Department of the Treasury

###### Bureau of Alcohol, Tobacco and Firearms 

          - 27 CFR Part 9 
          - [T.D. ATF-453 ; RE: Notice No. 905] 
          - RIN 1512-AA07 

# AGENCY:

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

# ACTION:

Final Rule, Treasury decision. 

# SUMMARY:

This final rule establishes a viticultural area to be known as “Long Island,” located in Nassau and Suffolk counties, New York. This action is the result of a petition filed by Richard Olsen-Harbich on behalf of Raphael Winery, the Petrocelli Family, and Karen Meredith of Broadfields Vineyards. 

The establishment of viticultural areas and the subsequent use of viticultural area names as appellations of origin in wine labeling and advertising allow wineries to designate the specific areas where the grapes used to make the wine were grown. This enables consumers to better identify the wines they may purchase. 

# EFFECTIVE DATE:

July 16, 2001. 

# 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 a new part 9 to 27 CFR, American Viticultural Areas, for providing the listing of approved American viticultural areas, the names of which may be used as appellations of origin. 

ATF does not wish to give the impression by approving the Long Island viticultural area that it is approving or endorsing the quality of wine from this area. ATF is approving this area as being distinct from surrounding areas, not better than other areas. By approving this area, ATF will allow wine producers to claim a distinction on labels and advertisements as to origin of the grapes. Any commercial advantage gained can only come from consumer acceptance of wines from Long Island. 

### What Is the Definition of an American Viticultural Area? 

27 CFR 4.25a(e)(1), 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. Long Island Petition 

                    ATF received a petition from Richard Olsen-Harbich on behalf of Raphael Winery, the Petrocelli Family, and Karen Meredith of Broadfields Vineyards, proposing to establish a viticultural area in Nassau and Suffolk counties, New York, to be known as “Long Island.” This viticultural area                           ( print page 26790)                        encompasses the two existing appellations, “The Hamptons, Long Island” and “North Fork of Long Island,” as described in 27 CFR 9.101 and 9.113, as well as the remaining areas of Nassau and Suffolk counties, New York. The Long Island viticultural area does not include Kings County (Brooklyn) or Queens County, New York.                 

The Long Island viticultural area encompasses approximately 1,170 square miles or 749,146 acres. Over 2,500 acres of vineyards are currently planted in the viticultural area and the area presently boasts thirty-eight vineyard and/or winery businesses. 

### Notice of Proposed Rulemaking 

                    In response to the petition, ATF published a notice of proposed rulemaking, Notice No. 905, in the                     **Federal Register**                     on November 6, 2000, (65 FR 66518), proposing the establishment of the Long Island viticultural area. The notice requested comments from interested persons by January 5, 2001.                 

### Comments on Notice of Proposed Rulemaking 

Seven comments were received as a result of Notice No. 905, including a comment from United States Senator Charles E. Schumer, and a comment from several Members of the Assembly from the State of New York. All of the comments fully supported the establishment of the Long Island viticultural area. Senator Schumer emphasizes his support by stating “no other region in the Eastern United States has the quality of soil, length of growing season, moderate winter temperatures, and necessary amount of natural precipitation as Long Island.” 

### What Name Evidence Has Been Provided? 

                    The petitioner offered the following as evidence that the name “Long Island” refers to the area. The name “Long Island” has been in continuous use from 1616 to the present to represent the island on which the viticultural area is located. However, the                     *Long Island Travel Guide*                     (1997) states that the name “Long Island” is commonly known to mean Nassau and Suffolk counties exclusively. Also, the 1999                     *Long Island Almanac*                     (33rd ed.) covers Nassau and Suffolk counties only.                 

                    The                     *Bell Atlantic White Pages*                    lists approximately 1,150 business telephone listings in Suffolk and Nassau counties using the term “Long Island.” By comparison, the                     *White Pages*                    in Brooklyn and Queens reflect almost no usage of the term “Long Island” to describe businesses located there. In addition, the petitioner submitted, as evidence, several maps, newspaper, and magazine articles which refer to the area as “Long Island.”                 

### What Boundary Evidence Has Been Provided? 

The petitioner has submitted, as boundary evidence, the following maps on which the name “Long Island” prominently appears: 

1. U.S.G.S. Map (New York, N.Y.; N.J.; Conn. 1960 (revised 1979)); 

2. U.S.G.S. Map (Hartford, Conn.; N.Y.; N.J.; Mass. 1962 (revised 1975)); and 

3. U.S.G.S. Map (Providence, R.I.; Mass.; Conn.; N.Y. 1947 (revised 1969)). 

The Long Island viticultural area is located on the eastern part of Long Island, New York. The area is surrounded by the Queens County line on the west, Long Island Sound to the north, the Atlantic Ocean to the south and Block Island Sound and Fishers Island Sound to the east. 

Long Island, New York, has four counties: Kings (commonly known as Brooklyn), Queens, Nassau, and Suffolk. The petitioner contends that the appropriate western boundary for the viticultural area is the Queens County line because Kings and Queens counties are not suitable for viticultural purposes. Commercial farms no longer exist in Kings or Queens counties; these counties are densely populated urban areas. In addition, the name “Long Island” is used in common parlance to refer to the Nassau and Suffolk counties exclusively. 

### What Evidence Relating to Geographical Features Has Been Provided? 

    - Soil:

The record demonstrates that the soils of the Long Island viticultural area are glacial in origin. In general, the soils of the viticultural area contain a greater percentage of sand and gravel and a lower percentage of silt, loam and clay than in the soil associations and series found in bordering areas. Soils in the Long Island viticultural area lack any real percentage of natural limestone when compared to surrounding regions. The soils of the viticultural area are more acidic and make an agricultural liming program indispensable to any vineyard operation. Because of this factor, the soils of the viticultural area are also slightly lower in natural fertility and water-holding capacity than neighboring areas. According to the petitioner, this difference in soil types leads to a very unique and distinct “terroir” for the Long Island viticultural area—-sandy loams will warm up faster, drain better, and allow deeper root penetration than soils in bordering areas, which contain greater amounts of silt, clay and rock. 

The soils of the Long Island viticultural area are fairly uniform in that they are predominately glacial till and glacial outwash in nature, are very low in organic matter, and contain few, if any, large mineral deposits or exposed rock formations. Many of the soil series including the Wallington, Sudbury, Scio, Montauk, Plymouth and Riverhead Soil Series are common throughout the entire viticultural area. 

One of the most distinctive features of the Long Island viticultural area is the vast quantity of sandy loam soil deposited during the Pleistocene Epoch of the Quarternary Period. This soil was deposited during the last four major glacial stages of this Epoch. From oldest to youngest they are: Nebraskan, Kansan, Illoian, and Wisconsin. Because of this, the area between the surface soil and bedrock areas is several hundred feet. 

                    By contrast, the nearest surface bedrock begins near the Queens County line. Some areas of Queens show exposed bedrock formations while the bedrock layer in the Long Island viticultural area can be as much as 500 feet below the surface. For this reason, the soils found in Queens County are much shallower than the typical soils found in the viticultural area and are not suitable for growing grapes. In addition, Queens County, which is considered part of New York City, is completely urbanized and contains essentially no agricultural land. Most of the soil series now identified in Queens are known as                     *anthropgenic*                    soils. These soils are described as having properties that are dominantly derived from human activities. Out of the 30 soil types found in the region of Queens County, only three are also found in the Long Island viticultural area.                 
    - Topography and Terrain:

                    Evidence submitted by the petitioner shows that the Long Island viticultural area is unique from its bordering regions in that it lacks any real undulations, rock outcrops or muckland areas. By contrast, the Highland Basin, located immediately to the west-northwest of the Long Island viticultural area and encompassing the areas of northern New Jersey, the Hudson Highlands region of southern New York (including Manhattan, Westchester, the Bronx, and parts of Brooklyn and Staten Island), and upland parts of Connecticut, is a rugged, hilly-to-mountainous terrain. Similarly, the Newark and Atlantic Basins, located directly to the northeast and southwest of the viticultural area,                           ( print page 26791)                        contain characteristic sedimentary sandstones and mudrocks that usually bear a red or brownish appearance from an abundance of iron oxide minerals (hematite and limonite). None of these geologic formations exist in the Long Island viticultural area.                 
    - Climate:

There is evidence in the record showing that the moderating influence of the Long Island viticultural area's surrounding water is evident in the temperature data. In terms of average temperatures, the viticultural area shows the highest average annual winter temperature compared to the surrounding areas. The Long Island viticultural area's average low temperature over thirty years is 43.5 degrees Fahrenheit (43.5°F), 2.5°F warmer than the area of Westchester County and downstate New York, and 2.2°F warmer annually than the average from New Jersey. The Long Island viticultural area is also over 4°F warmer on average than Connecticut. 

The Long Island viticultural area also has the least extreme winter low temperatures than its surrounding areas with the lowest average being −5.67°F. New Jersey was 1.63°F colder at −7.3°F. Westchester/Downstate New York and Connecticut were seen to have winter low temperatures considerably colder than the Long Island viticultural area. Connecticut can experience temperatures as low as −13.5°F which is 7.83°F colder than the Long Island viticultural area. Westchester/Downstate New York proved to be the coldest with low temperatures reaching −15.3°F in some years which is 9.63°F colder than the Long Island viticultural area. 

Based on the standard University of California at Davis (UCD) temperature summation definition of climatic regions or zones, the Long Island viticultural area would appear to fall into high Region II (less than 3,000 degree days). Connecticut on the average is a borderline Region II with some years having Region I (less than 2,500 degree days) conditions. New Jersey is solidly classified as a Region III (less than 3,500 degree days), with some locations approaching Region IV (less than 4000 degree days) status in warmer years. The Long Island viticultural area historically has an average of 166 more degree-days than Westchester/Downstate NY and as much as 324 more degree-days than Connecticut. 

On average, the Long Island viticultural area experiences 204 frost-free days during the growing season. This is 31 days longer than New Jersey, 37 days longer than Westchester/Downstate NY and as much as 50 days longer than the Connecticut average. The Long Island viticultural area can therefore have as much as four to seven weeks more growing season than any of the surrounding land masses. 

On an average annual basis, the Long Island viticultural area has the lowest levels of precipitation of all the surrounding areas with 42 inches annually. The annual difference is 3.4 inches less than Westchester/Downstate NY, 3.8 inches less than New Jersey and 4.1 inches less than Connecticut. The reason for this difference is attributed to the moderating influence of Long Island Sound waters. 

## 3. Regulatory Analyses and Notices 

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

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

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

It is hereby certified that this 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 imposed. 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 final rule because no requirement to collect information is imposed. 

## 4. 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 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 § 9.170 to read as follows:                     

§ 9.170

(a) Name. The name of the viticultural area described in this section is “Long Island.” 

(b) Approved Maps. The appropriate maps for determining the boundary of the Long Island viticultural area are three United States Geological Survey (U.S.G.S.) topographic maps (Scale: 1:250,000). They are titled: 

(1) “New York, N.Y.; N.J.; Conn.,” 1960 (revised 1979); 

(2) “Hartford, Conn.; N.Y.; N.J.; Mass.,” 1962 (revised 1975); and 

(3) “Providence, R.I.; Mass.; Conn.; N.Y.,” 1947 (revised 1969). 

(c) Boundaries. The Long Island viticultural area includes approximately 1,170 square miles or 749,146 acres and is made up of the counties of Nassau and Suffolk, New York, including all off shore islands in those counties. 

Bradley A. Buckles,

Director.

Approved: April 19, 2001. 

Timothy E. Skud,

Acting Deputy Assistant Secretary, (Regulatory, Tariff and Trade Enforcement). 

[FR Doc. 01-12161 Filed 5-14-01; 8:45 am] 

BILLING CODE 4810-31-P