Federal Register / Vol. 66, No. 106 / Friday, June 1, 2001 / Rules and Regulations 29695

[FR Doc. 01–13795 Filed 5–31–01; 8:45 am]

BILLING CODE 4910–13–M

DEPARTMENT OF THE TREASURY

Bureau of Alcohol, Tobacco and

Firearms

27 CFR Part 9

[T.D. ATF–456 ; Re: Notice No. 882]

RIN 1512–AA07

Diamond Mountain District Viticultural

Area (99R–223P)

AGENCY: Bureau of Alcohol, Tobacco

and Firearms (ATF), Department of the

Treasury.

ACTION: Treasury decision, final rule.

SUMMARY: This Treasury decision will

establish a viticultural area in Napa

County, California, to be known as

‘‘Diamond Mountain District.’’ This

viticultural area is a result of a petition

submitted by Rudy von Strasser of Von

Strasser Winery on behalf of the

Diamond Mountain Appellation

Committee, representing 15 growers and

vintners in the proposed area.

EFFECTIVE DATE: Effective July 31, 2001.

FOR FURTHER INFORMATION CONTACT:

Jennifer Berry, Bureau of Alcohol,

Tobacco and Firearms, 111 W. Huron

Street, Room 219, Buffalo, New York

14202–2301, (716) 551–4048.

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 on wine labels and in wine

advertisements. 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?

An American viticultural area is a

delimited grape-growing region

distinguishable by geographic 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 characteristics (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 (or copies) of the

appropriate U.S.G.S. map(s) with the

boundaries prominently marked.

2. Rulemaking Proceeding

Petition

Rudy von Strasser of Von Strasser

Winery petitioned ATF for the

establishment of a viticultural area in

Napa County, California, to be called

‘‘Diamond Mountain.’’ The petition was

filed on behalf of the Diamond

Mountain Appellation Committee,

whose 15 growers and vintners

represent 87 percent of the total

vineyard holdings in the viticultural

area. The proposed viticultural area is

located entirely in Napa County,

California and encompasses

approximately 5,000 acres, of which

approximately 450 acres are planted to

vineyards.

Notices of Proposed Rulemaking

A Notice of Proposed Rulemaking,

Notice No. 882, was published in the

Federal Register on September 29, 1999,

requesting comments from all interested

persons concerning the proposed

viticultural area. The comment period

was to close on November 29, 1999. On

November 15, 1999, ATF received a

request from Fred and Mary Constant of

Diamond Mountain Vineyard to extend

the comment period an additional 60

days. Diamond Mountain Vineyard is

located within both Napa and Sonoma

Counties, partially within the

boundaries proposed for the Diamond

Mountain viticultural area. According to

the winery, it had been unable to get

timely and complete information on the

specifics of the proposal and therefore it

needed additional time to prepare its

comments. In view of this, on November

26, 1999, ATF published Notice No. 886

extending the comment period until

January 28, 2000.

Comments

Thirty-nine comments were received

in response to Notice 882. Thirty-seven

of the comments favored adoption of the

viticultural area as proposed. Twentyfive of these specifically supported the

use of the Napa and Sonoma county line

as one of the boundary lines for

proposed area. These commenters

maintained that because the name

‘‘Diamond Mountain’’ has always been

associated with Napa Valley, the

boundaries should not encompass any

areas outside Napa County.

Fred and Mary Constant of Diamond

Mountain Vineyards submitted two

comments proposing two changes to the

proposed viticultural area. First, they

proposed changing the name to

‘‘Diamond Mountain District.’’ The

Constants argued that because the

proposed area does not physically

encompass all of Diamond Mountain, as

identified on the U.S.G.S. map included

in the petition, the name ‘‘Diamond

Mountain’’ could be confusing. The

Constants, who own a trademark for the

name ‘‘Diamond Mountain Vineyard’’,

also felt that ‘‘Diamond Mountain

District’’ would reduce confusion and

conflicts with their trademark, their

winery name, and other Diamond

Mountain trademarks. As evidence for

the use of this name, the Constants

submitted two documents in which

‘‘District’’ is used in association with

‘‘Diamond Mountain’’. One, a 1913

school board document, twice referred

to the Diamond Mountain school

district. The other, an article from the

12/4/99 issue of the Wine Business

Insider on the proposed Diamond

Mountain viticultural area, used the

phrase ‘‘Diamond Mountain District’’.

The Constants also proposed

amending the southwestern boundary of

the viticultural area to include their

Sonoma county property. Their

vineyard, Diamond Mountain Vineyard,

straddles the Napa and Sonoma county

line. Fifty-five of its acres are located in

Napa County within the proposed

boundaries of the Diamond Mountain

viticultural area, while 15 of its acres

are in Sonoma county, just outside the

proposed boundaries. The Constants

argued that their Sonoma property is on

Diamond Mountain and should

therefore be included in any viticultural

area bearing its name. Referring to the

U.S.G.S. map submitted by the

petitioners (Calistoga, CA 1993,

1:24,000), they pointed out that much of

29696 Federal Register / Vol. 66, No. 106 / Friday, June 1, 2001 / Rules and Regulations

Diamond Mountain, including its peak,

is actually in Sonoma County.

Their proposal was supported by their

assertion that the climate and soil of

their Sonoma property is

indistinguishable from that of their

Napa property. They stated that it is

unlikely for climate to vary dramatically

over a distance of a few hundred feet on

the same side of a mountain. The

elevation of their Sonoma property is

not an issue, according to the Constants,

because the highest part of their Sonoma

property is no higher than the highest

part of their Napa property. The soil,

they asserted, is also consistent between

their Napa and Sonoma parcels. The

Constants did not provide any evidence

supporting this claim.

Additionally, the Constants stated

that their vineyard, originally planted to

vines around 1900 by Andrew

Rasmussen, is one of the oldest on

Diamond Mountain. They submitted

several pieces of evidence which

mention the Rasmussen vineyards as

located on Diamond Mountain near the

Napa-Sonoma County line. Because of

the historical importance of their

vineyard, the Constants felt it should be

included in the viticultural area in its

entirety.

Finally, the Constants stated that the

division of their vineyards by the

viticultural area boundaries will create

an administrative and financial burden

for them by forcing them to track the

origin of their grapes.

Petitioners’ Response

The petitioners, in counter comments,

initially disagreed with both the

proposed name change and the proposal

to include Sonoma County property in

the viticultural area, calling the

evidence cited for these changes weak.

On January 22, 2001, the petitioners

wrote to ATF stating that they had

reconsidered and now wished to change

the name of the viticultural area to

‘‘Diamond Mountain District.’’

However, they stated that they were

against any change in the proposed

boundaries.

While the petitioners acknowledged

that Diamond Mountain’s peak is in

Sonoma County, they argued that

historical and current usage of the name

is strongly associated with Napa, not

Sonoma, County. The petitioners

submitted, as part of either the petition

or counter comments, over 40 articles

referencing Diamond Mountain as a

grape growing area in Napa Valley or

Napa County. The petitioners felt that

including Sonoma County land in a

viticultural area associated with Napa

Valley would be confusing to the public.

The petitioners also submitted, as part

of their counter comments, a document

written by wine historian William F.

Heintz titled ‘‘Diamond Mountain—An

Overview of its History & the

Rasmussens on Diamond Mountain

Napa County, California.’’ Mr. Heintz

found historical records indicating that

‘‘Diamond Mountain’’ was a Napa

County region name and road name

before it was used for the mountain

peak. According to Mr. Heintz’s

research, the earliest use of the name on

a Sonoma County map was in 1970.

Thus, the petitioners argued, ‘‘Diamond

Mountain’’ is historically a Napa County

name.

Mr. Heintz also researched the history

of the Rasmussen’s vineyards by

examining Napa and Sonoma County

assessment records and interviewing

individuals familiar with the

Rasmussen/Constant property. He

concluded that the Rasmussens never

grew grapes on the Sonoma portion of

their property. Two commenters

concurred, stating their personal

observations of the property in question

showed that, prior to the Constants’

ownership, it was heavily forested and

contained no evidence of old grape

plantings.

Finally, the petitioners argued that the

division of the Constants’ vineyards by

the viticultural area boundary would

not create a financial or administrative

burden. They pointed out that this

boundary is already one of the

boundaries of the Napa Valley

viticultural area. They argued that the

Constants knowingly purchased a parcel

in Sonoma, on the other side of the

present Napa Valley boundary, thus

choosing to divide their vineyard

holdings. Their financial and

administrative burden, the petitioners

maintained, would not change with the

establishment of the proposed Diamond

Mountain District boundaries.

ATF Analysis of Comments

After careful review of the comments,

ATF has concluded that the evidence

provided supports the creation of the

viticultural area with the name

‘‘Diamond Mountain District’’ and with

the boundaries as originally proposed.

Name

ATF finds that sufficient evidence has

been submitted to support the name

‘‘Diamond Mountain District.’’ In

addition to insuring that the viticultural

name is that by which the area is locally

and/or nationally known, ATF must

also insure that the name is not false or

misleading to the consumer. While the

evidence shows that the area has also

been called ‘‘Diamond Mountain’’, ATF

finds that this name could be confused

with the Constants ’ winery, Diamond

Mountain Vineyards. ATF therefore

feels that the name ‘‘Diamond Mountain

District’’ is a better choice. This name is

known to refer to the viticultural area

and is not misleading.

Boundaries

ATF finds that the evidence provided

by Fred and Mary Constant is not

sufficient to change the boundaries as

originally proposed. In order for ATF to

adopt their proposal, the evidence

would need to show that: (1) Their

Sonoma County property is recognized

by consumers and the wine industry as

part of the viticultural area, and (2) their

Sonoma County property shares

geographic characteristics with the

viticultural area. Both of these elements

must be proved by the evidence for the

proposal to be adopted.

First, the Constants did not establish

that their Sonoma County property is

recognized as part of the viticultural

area. To provide name recognition and

boundary evidence, the petitioners

submitted over forty articles from

newspapers, magazines, and reference

books referring to Diamond Mountain as

a wine region in Napa Valley or Napa

County. None of these articles mention

wineries or vineyards in Sonoma

County.

Both the petitioners and the Constants

referenced an article from the JanuaryFebruary 1977 issue of Connoisseurs’

Guide to California Wine titled ‘‘Napa

Valley Appellations.’’ This article

identifies Diamond Mountain as one of

several Napa Valley areas having unique

grape-growing characteristics. In their

comments, the Constants quote this

article, ‘‘We would identify the whole

mountain area west of the Valley and

north of Spring Mountain as Diamond

Mountain,’’ and argue that it supports

the inclusion of their vineyard in the

viticultural area. However, because of

the vagueness of this description, and

the fact that this article is clearly

referencing Napa Valley areas, ATF does

not find this article to be sufficient

evidence for the Constants’ proposed

boundaries.

Both the Constants and the petitioners

presented arguments on whether the

Rasmussens grew grapes on the

Constants’ Sonoma parcel on Diamond

Mountain. The petitioners submitted

several pieces of evidence that

persuasively indicated that while the

Rasmussens did grow grapes on their

Napa property, they did not grow any

on their Sonoma property. The

Constants’ evidence was more general

and merely established the site of the

Rasmussens’ property, and not that they

Federal Register / Vol. 66, No. 106 / Friday, June 1, 2001 / Rules and Regulations 29697

grew grapes in Sonoma County. After

analysis of the combined evidence, ATF

finds that the Sonoma County portion of

Diamond Mountain does not share the

viticultural history of the Napa County

portion.

Second, the Constants did not

establish that that their Sonoma County

property shares geographic

characteristics with the proposed

viticultural area. It is indisputable that

the geographic feature called ‘‘Diamond

Mountain’’, as depicted on the

petitioners’’ U.S.G.S. map, includes part

of Sonoma County and the Constants’

vineyard. However, ATF has created

other viticultural areas named for a

mountain that do not encompass the

entire mountain. In many cases,

separate areas of a mountain may have

varying climates, soils, or other

geographic features, thus creating

different grape growing conditions. For

example, when establishing the Bell

Mountain viticultural area (T.D. ATF–

238), ATF cited the soils and

topography in its decision to include

only the south and southwestern slopes

of Bell Mountain in the viticultural area.

In another example, the higher

elevations of Sonoma Mountain were

not included in the Sonoma Mountain

viticultural area (T.D. ATF–196) because

of climate and topography. In cases such

as these, the viticultural area should not

encompass the entire mountain since

geographic features (climate, soil,

elevation, physical features) should be

similar within the viticultural area. In

the case of Diamond Mountain District,

the petitioners have submitted

persuasive evidence that the soil and

climate in the Napa County part of

Diamond Mountain are different from

those in the adjacent part of the

mountain in Sonoma County. In view of

this, the evidence must show that the

Constants’ Sonoma parcel not only is

physically on Diamond Mountain, but

also shares similar soil and climatic

conditions with the petitioner’s

proposed viticultural boundaries.

Because the Constants have not

submitted any evidence regarding the

climate or soils of their proposed

boundaries, ATF cannot determine if

they are similar to those in the proposed

viticultural boundaries proposed by the

petitioner.

Taken as a whole, the historic and

current evidence regarding the

boundaries supports the original

boundaries proposed by the petitioners.

No evidence was present that associated

Sonoma County or the Constants’

Sonoma vineyard with the grape

growing area known as ‘‘Diamond

Mountain District.’’ ATF’s conclusion is

that the Diamond Mountain District is

locally and nationally known as

referring to that part of Diamond

Mountain in Napa County. This, along

with the petitioners’ climate and soil

evidence, supports designating only the

Napa County part of Diamond Mountain

as the viticultural area ‘‘Diamond

Mountain District.’’

Evidence That the Name of the Area Is

Locally or Nationally Known

The Diamond Mountain District has

been home to vineyards and wineries

since the 1860’s. According to the

petitioner’s evidence, a Mr. Joseph

Schram planted his first vines as early

as 1863 and had a hundred acres of

vineyards by 1892.

According to the petitioner, the

evolution of Diamond Mountain into a

Napa Valley regional name began in the

early decades of the 20th century, with

Diamond Mountain School and

Diamond Mountain Road being the first

features in the region to bear the name.

The naming of the school took place in

1909, with the major access road in the

region designated as Diamond Mountain

Road shortly thereafter. The petitioner

has also presented substantial evidence

that the Diamond Mountain District

began to gain national renown in the

early 1970’s, as expanding consumer

interest in California wines resulted in

new vineyards, new wineries and a

greater awareness of regional wine

character. As evidence for this national

name, the petitioner included an

excerpt from the second edition of The

Wines of America by Leon Adams that

states, ‘‘Diamond Mountain, like Mt.

Veeder and Spring Mountain also on the

west side of Napa Valley, is regarded as

a viticultural district separate from the

rest of Napa Valley.’’

Historical or Current Evidence That the

Boundaries of the Viticultural Area Are

as Specified in the Petition

According to the petitioner, precise

boundaries for the region being

proposed have never been delineated.

The evidence submitted, however,

shows that the Diamond Mountain

District’s viticultural history and

identity are strongly associated with

Napa Valley. For this reason, the

boundaries of the viticultural area are

entirely within Napa County. According

to the petitioner, the petition took a

conservative approach to establishing

boundaries for the Diamond Mountain

District. The petitioner stated that

special care was taken to assure that the

boundaries encompass only those lands

that meet both the historic and

geographic criteria for inclusion in the

viticultural area. Also, the boundaries

have been drawn to respect neighboring

regions with separate names, histories,

geographic features and political

boundaries. The petitioner cited the

Fourth Edition of The Connoisseurs’

Handbook of the Wines of California

and the Pacific Northwest for a

description of the proposed area ‘‘***

a portion of the Napa Valley’s western

hills between St. Helena and Calistoga’’.

This citation was accompanied by a

map which shows the rough limits of

the region: Spring Mountain to the

south, the 400 foot elevation that

generally parallels Highway 29 to the

east, Petrified Forest Road to the north

and the Napa-Sonoma County line to

the west.

The petitioner chose the 400-foot

contour line for the northeastern

boundary to accurately reflect the

lowest elevation of vineyards

historically associated with the

Diamond Mountain District. The use of

the Napa-Sonoma County line as the

southwestern boundary acknowledges

the historic association of the Diamond

Mountain District viticultural area with

Napa County and Napa Valley, and also

recognizes the differences in history and

geography that distinguish Diamond

Mountain from adjacent slopes of the

Mayacama Mountains in Sonoma

County.

Evidence Relating to the Geographical

Features (Climate, Soil, Elevation,

Physical Features, etc.) Which

Distinguish Viticultural Features of the

Area From Surrounding Areas

There is evidence in the record that

the geographical features in the

Diamond Mountain District viticultural

area clearly distinguish it from

surrounding areas. The Diamond

Mountain District is situated in the

Napa Valley on the eastern slope of the

Mayacamas Mountains. The region

consists entirely of residual upland soils

derived from volcanic parent material.

These soils are very different from the

alluvial soils on the floor of the Napa

Valley to the east and northeast and are

also significantly different from the

sedimentary upland soils prevalent in

the Spring Mountain viticultural area to

the south. These soils are significantly

different from the shallow, dry soils in

Sonoma County to the west and

southwest. According to the petitioner,

the viticultural area’s topography and

aspect contribute to a special

microclimate. Hillside topography and

valley temperature inversions combine

to give the region an unusually

moderate temperate regime during a

growing season, with lower maximum

temperatures and higher minimum

temperatures than nearby locations on

the floor of the Napa Valley. The

29698 Federal Register / Vol. 66, No. 106 / Friday, June 1, 2001 / Rules and Regulations

petitioner stated that the microclimate

of the Diamond Mountain District is

clearly distinctive when compared to

the surrounding areas. The region’s

microclimate is slightly warmer than

that of the Spring Mountain District to

the south, but somewhat similar due to

comparable upland locations,

northeastern (eastern, in Spring

Mountain’s case) aspects, and cooling

influence of marine breezes from the

Pacific Ocean. The microclimate is

significantly cooler than the floor of the

Napa Valley to its northeast and north,

due to various tempering influences

primarily associated with its upland

location. So too is it cooler than

adjacent land to the west in Sonoma

County, due to its predominantly

northeastern aspect which provides

oblique sun and shade in the afternoon,

while the western aspect of the

Mayacamas Mountains adjacent to the

region in Sonoma County is clearly

hotter and drier.

Boundaries

The viticultural area is located in

Napa County, California. The approved

USGS maps for determining the

boundary of the Diamond Mountain

District viticultural area are, ‘‘Mark

West Springs, Calif.’’, 7.5 minute series,

edition of 1993, and the ‘‘Calistoga,

Calif.’’, 7.5 minute series, edition of

1993. The northeastern boundary

follows the 400-foot contour line from

Ritchey Creek northwest to the Petrified

Forest Road and the northern boundary

follows the Petrified Forest Road west

from the 400-foot contour line to the

Napa-Sonoma county line. The

southwestern boundary follows the

official boundary line between Napa

and Sonoma counties southeast from

Petrified Forest Road to the east-west

boundary between Sections 18 and 19 in

Township 8 North, Range 6 West,

Mount Diablo Range and Meridian. The

southern boundary follows the

boundary between Sections 18 and 19,

Sections 17 and 20 and Ritchey Creek

east from the Napa-Sonoma county line

to the 400-foot elevation line. It also

corresponds with the Northern

Boundary of the Spring Mountain

District viticultural area.

3. Regulatory Analyses and Notices

Does the Paperwork Reduction Act

Apply to This Rule?

The provisions of 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 rule because no

requirement to collect information is

imposed.

How Does the Regulatory Flexibility Act

Apply to This Rule?

These 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.

Is This a Significant Regulatory Action

as Defined by Executive Order 12866?

It has been determined that this

regulation is not a significant regulatory

action as defined by Executive Order

12866. Therefore, a regulatory

assessment is not required.

4. Drafting Information

The principal author of this document

is Jennifer Berry, 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 § 9.166 to read as follows:

§ 9.166 Diamond Mountain District

(a) Name. The name of the viticultural

area described in this section is

‘‘Diamond Mountain District.’’

(b) Approved Map. The appropriate

maps for determining the boundary of

the Diamond Mountain District

viticultural area are two 1:24,000 Scale

U.S.G.S. topography maps.

They are titled:

(1) Mark West Springs, CA 1993

(2) Calistoga, CA 1993.

(c) Boundaries. The viticultural area is

located in Napa County, California. The

beginning point is where the boundary

between Napa and Sonoma counties

intersects Petrified Forest Road in

Section 3 of Township 8 North, Range

7 West, Mount Diablo Base and

Meridian on the Mark West Springs

map;

(1) Then north and east along

Petrified Forest Road approximately 1.9

miles to the point where it intersects the

400-foot contour just east of Section 35

of Township 9 North, Range 7 West,

Mount Diablo Base and Meridian, in the

Mallacomes land grant;

(2) Then generally east southeast

along the 400-foot contour

approximately 6.5 miles to the point

where it intersects Ritchey Creek in

Section 3 of Township 8 North, Range

6 West, Mount Diablo Base and

Meridian;

(3) Then west southwest along

Ritchey Creek approximately 2.2 miles

to the point where it intersects the

boundary between Sections 17 and 20 of

Township 8 North, Range 6 West,

Mount Diablo Base and Meridian;

(4) Then due west in a straight line

along the section boundary

approximately 0.8 miles to the point

where it intersects the boundary

between Napa and Sonoma Counties

between Sections 18 and 19 of

Township 8 North, Range 6 West,

Mount Diablo Base and Meridian;

(5) Then generally northwest along

the boundary between Napa and

Sonoma Counties approximately 4.2

miles to the point where it intersects

Petrified Forest Road, to the point of

beginning.

Signed: April 13, 2001.

Bradley A. Buckles,

Director.

Approved: April 19, 2001.

Timothy E. Skud,

Deputy Assistant Secretary (Regulatory, Tariff

and Trade Enforcement).

[FR Doc. 01–13821 Filed 5–31–01; 8:45 am]

BILLING CODE 4810–31–P