[Federal Register Volume 70, Number 173 (Thursday, September 8, 2005)]
[Rules and Regulations]
[Pages 53300-53304]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-17759]


-----------------------------------------------------------------------

DEPARTMENT OF THE TREASURY

Alcohol and Tobacco Tax and Trade Bureau

27 CFR Part 9

[T.D. TTB-33; Re: Notice No. 33]
RIN 1513-AA97


Establishment of the Niagara Escarpment Viticultural Area (2004R-
589P)

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

ACTION: Final rule; Treasury decision.

-----------------------------------------------------------------------

SUMMARY: This Treasury decision establishes the Niagara Escarpment 
viticultural area in Niagara County, New York. We designate 
viticultural areas to allow vintners to better describe the origin of 
their wines and to allow consumers to better identify wines they may 
purchase.

DATES: Effective October 11, 2005.

FOR FURTHER INFORMATION CONTACT: Nancy Sutton, Regulations and 
Procedures Division, Alcohol and Tobacco Tax and Trade Bureau, 925 
Lakeville St., No. 158, Petaluma, California 94952; telephone (415) 
271-1254.

SUPPLEMENTARY INFORMATION:

Background on Viticultural Areas

TTB Authority

    Section 105(e) of the Federal Alcohol Administration Act (the FAA 
Act, 27 U.S.C. 201 et seq.) requires that alcohol beverage labels 
provide the consumer with adequate information regarding a product's 
identity and prohibits the use of misleading information on such 
labels. The FAA Act also authorizes the Secretary of the Treasury to 
issue regulations to carry out its provisions. The Alcohol and Tobacco 
Tax and Trade Bureau (TTB) administers these regulations.
    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) 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

[[Page 53301]]

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 geographical features, such as 
climate, soils, elevation, and physical features, that distinguish the 
proposed viticultural area from surrounding areas;
    <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 boundaries prominently marked.

Niagara Escarpment Petition and Rulemaking

General Background

    Michael Von Heckler of Warm Lake Estate Vineyard and Winery 
petitioned TTB for the establishment of an American viticultural area 
to be called ``Niagara Escarpment'' in Niagara County, New York. The 
proposed 18,000-acre viticultural area includes approximately 400 acres 
of vineyards. The proposed boundary area runs in a narrow 28-mile wide 
band, starting at the village of Johnson Creek, traveling west through 
the towns of Gasport and Lockport, and ending at the Niagara River at 
Lewiston.
    Below, we summarize the evidence presented in the petition and the 
comments received in response to the notice for public comment.

Name Evidence

    The proposed Niagara Escarpment viticultural area derives its name 
from the Niagara Escarpment, a limestone ridge that runs for more than 
650 miles through the Great Lakes region. The Niagara Escarpment forms 
a geological horseshoe that begins near Rochester, New York, and 
continues west through southern Ontario, Canada, Lake Huron, the upper 
peninsula of Michigan, and terminates in eastern Wisconsin.
    The Niagara Escarpment enters Niagara County in the east near 
Johnson Creek and then runs west through the middle of the county along 
State Route 104 to the town of Lewiston. At the west end of Niagara 
County, the escarpment crosses the Niagara River Gorge, and Niagara 
Falls is at the head of the gorge.
    Excerpts from Government and travel Internet sites discuss the 
Niagara Escarpment in Niagara County. These include:
    <bullet> A page on the Institute for Local Governance and Regional 
Growth Web site that discusses how the Niagara River flows over the 
Niagara Escarpment creating Niagara Falls. (See http://www.regional-institute.buffalo.edu/regi/natu.html)
    <bullet> Vintage New York's Web site states that the prime vineyard 
sites in western New York are ``bordered by the Niagara River on the 
west, Lake Ontario on the north and the Niagara escarpment on the 
south.'' (See http://www.vintagenewyork.com/regions/erie.html)
    <bullet> The Niagara Tourism and Convention Corporation's Web site 
notes that Niagara Landing Wine Cellars, a Niagara County winery, is 
``located at the base of the Niagara Escarpment.'' (See http://www.niagara-usa.com/attractions/niagaralanding.html)
    <bullet> The Western New York Regional Information Network's Town 
of Cambria Web site describes the town as an agricultural town 
``divided in the middle by the Niagara Escarpment.'' (See http://www.wnyrin.com/c_niag/welc/juri/juri_cambt)
    In addition, a July 26, 2004, Toronto Star newspaper article on New 
York wineries included with the petition discusses the Niagara 
Escarpment, and notes that:

Ontario wine lovers are keenly aware of the Niagara Escarpment, and 
``the Bench'' creating a special microclimate for grape growing in 
Niagara. Well, guess what: It comes up in New York State on the 
other side of the lake, in Lockport, north of Lewiston.

Boundary Evidence

    The geography of the Niagara Escarpment defines the boundary of the 
proposed viticultural area. The steepness of the Niagara Escarpment 
makes it topographically distinct from the Ontario Plain, which extends 
from the south shore of Lake Ontario to the base of the escarpment, and 
the Huron Plain, which begins at the escarpment's crest and extends 
southward past the Niagara County line.
    The Ontario Plain and the Huron Plain are relatively flat, with 
slopes of less than 20 feet per mile, according to the Soil Survey of 
Niagara County, New York (1972). In contrast, the Niagara Escarpment 
has a steep slope of 106 to 317 feet per mile. The southern and 
northern boundaries of the proposed Niagara Escarpment viticultural 
area encompass the north-facing slope of the escarpment between the 
600- and 400-foot elevation lines. These boundaries generally delineate 
the high and low altitudes of the slope within the proposed 
viticultural area boundaries.
    The Niagara River, which forms the international boundary line 
between the United States and Canada, also marks the western boundary 
of the proposed viticultural area. The portion of the Niagara 
Escarpment that extends west from the Niagara River, into the Canadian 
province of Ontario, is included in the Niagara Peninsula viticultural 
area, as designated by the Government of Canada.
    At the eastern end of Niagara County a portion of Johnson Creek, 
south of the village of the same name, forms the proposed eastern 
boundary line. East of the creek, elevations at the base of the Niagara 
Escarpment climb from 400 to 500 feet, and its slope becomes much 
narrower and steeper. The changes in topography east of Johnson Creek 
make it less desirable for viticulture. Therefore, the petitioner did 
not include the escarpment area east of Johnson Creek within the 
proposed viticultural area boundaries.

Distinguishing Features

Topography and Soils
    The topography and soils of the proposed viticultural area create 
distinct conditions for grape growing as compared to the surrounding 
areas. The Ontario and Huron Plains are nearly flat with deep soils 
that can harbor excessive water and nutrients. In contrast, the Niagara 
Escarpment has shallow soils with poor nutrient content, and sufficient 
sloping (2-6 percent) to allow for drainage.
    The conditions found in the proposed Niagara Escarpment 
viticultural area--

[[Page 53302]]

well drained soils, sufficient sloping, a steady but moderate water 
supply, and restricted mineral content--result in grapes with superior 
pigment and flavor compounds in the resultant wine. On the other hand, 
the conditions of the surrounding areas beyond the proposed 
boundaries--poor soil drainage and high nutrient content--result in 
grapes with less pigmentation, diluted flavors, and a lower quality of 
wine produced.
    As evidence of these soil differences, the ``Soil Survey of Niagara 
County, New York'' states that the central portion of Niagara County, 
along the escarpment, contains the Hilton-Ovid-Ontario soil 
association. It describes this association as ``deep, well-drained to 
somewhat poorly drained soil.'' In contrast, the survey states that the 
Ontario Plain north of the escarpment contains the Rhinebeck-Ovid-
Madalin association, which has ``deep, somewhat poorly drained to very 
poorly drained soils.'' The Huron Plain south of the escarpment 
contains the Odessa-Lakemont-Ovid association, which has ``deep, 
somewhat poorly drained to very poorly drained soils.''
Climate
    The location of the proposed Niagara Escarpment viticultural area, 
in relation to Lake Ontario, creates a microclimate conducive to grape 
growing. The maritime influence of Lake Ontario on the Niagara 
Escarpment allows for sufficient heat accumulation for the growing 
season in what is otherwise a cool climate. The ``Soil Survey of 
Niagara County, New York,'' notes that Lake Ontario greatly influences 
the climate of Niagara County. The survey states, ``In fall the lake 
waters are a source of heat that reduces cooling at night and increases 
the length of [the] freeze-free growing season.''
    The climatic relationship between Lake Ontario and the Niagara 
Escarpment is discussed in greater detail in ``Site Selection for 
Grapes in the Niagara Peninsula,'' a publication issued by the 
Horticultural Research Institute of Ontario to assist grape growers in 
the Niagara Peninsula of Canada in selecting the best vineyard sites. 
The climate information of the publication can be applied to the 
proposed Niagara Escarpment viticultural area, which is adjacent to the 
Niagara Peninsula and shares Lake Ontario and the Niagara Escarpment 
with the peninsula.
    According to the site selection publication, a unique airflow 
pattern affects the land between Lake Ontario and the crest of the 
escarpment. While the land warms quickly on warm days and cools rapidly 
on cool nights, the lake temperature changes more slowly. In the spring 
the lake temperature is cooler than the temperature of the adjacent 
land, while in the fall the lake is warmer than the land. The lake-
warmed air rises and draws cooler air in from the lakeshore in the fall 
and creates offshore breezes. As a result, the site selection 
publication states, ``the air now above the lake is warmed, rises and 
flows back over the land, creating a circular heat-pump effect.''
    In the spring and early summer the airflow pattern of the lake 
cools the adjacent land. Areas within two miles of the lakeshore can 
have a two-week delay in bud break due to the cooling effect of the 
lake. Also, daytime temperatures are often cooler because of the air 
currents of the lake. The site selection publication notes that ``most 
grape cultivars require a long, warm season and fruit quality is 
sometimes poor close to the lake because of lower day temperatures.'' 
Conversely, the proposed Niagara Escarpment viticultural area, between 
6 and 8 miles from Lake Ontario, experiences little or no delay in bud 
break or cooler daytime temperatures due to the lake influence.
    The ``Site Selection for Grapes in the Niagara Peninsula'' 
publication notes: ``The pattern airflow is altered by the slope of the 
land. With steep slopes, cold air drainage is rapid. Flat areas or 
depressions tend to accumulate cold air and become `frost pockets.' '' 
For areas between the lake and the escarpment, this airflow pattern 
minimizes frost conditions and increases heat accumulation, thereby 
extending the growing season of the proposed Niagara Escarpment 
viticultural area. Areas south of the escarpment do not benefit from 
the effect of the airflow pattern and are more prone to frost damage.
    The proposed Niagara Escarpment viticultural area has an extended 
ripening season when compared to grapes grown outside its boundary. In 
contrast, the areas north of the escarpment experience cooling spring 
temperatures that retard growth, while areas south of the escarpment 
are more prone to fall frost damage.

Boundary Description

    See the narrative boundary description of the viticultural area in 
the regulatory text published at the end of this notice.

Maps

    The petitioner provided the required maps, and we list them below 
in the regulatory text.

Notice of Proposed Rulemaking and Comments Received

    On February 9, 2005, TTB published in the Federal Register (70 FR 
6792) a notice of proposed rulemaking regarding the establishment of 
the Niagara Escarpment viticultural area (Notice No. 33). In that 
notice, TTB requested comments by April 11, 2005, from all interested 
persons. TTB received three comments. The first stated concerns with 
the proposed ``Niagara Escarpment'' name, and the second constituted a 
rebuttal from the petitioner on the first comment about the ``Niagara 
Escarpment'' name.
    The first commenter, Steve DeBaker, is from a grape-growing region 
of Door and Brown counties in northeast Wisconsin that is located on 
the Niagara Escarpment. He explained that the escarpment covers a 
region substantially larger than the proposed viticultural area in New 
York and suggested amending the proposed viticultural area name to 
``Niagara Escarpment New York.'' In conjunction with the state 
modifier, Mr. DeBaker expressed interest in petitioning for a ``Niagara 
Escarpment Wisconsin'' viticultural area.
    The second comment, by the petitioner Michael Von Heckler, argued 
that the Niagara Escarpment viticultural area, including its name, 
should be established as originally proposed. Mr. Von Heckler explained 
that a search of literature for the ``Niagara Escarpment Wisconsin'' 
name resulted in information about flora, fauna, and recreational 
opportunities. The search made no mention of wine grape growing within 
the Niagara Escarpment geological boundaries in Wisconsin, according to 
Mr. Von Heckler. Also, the Wisconsin Agricultural Statistics Service 
does not publish grape production information because the amount of 
grapes produced is too small to report. Mr. Von Heckler suggested that, 
at some future time, Mr. DeBaker could submit a petition to expand the 
boundary of the Niagara Escarpment viticultural area after its 
establishment.
    TTB, after careful consideration of the two comments, believes it 
is not necessary to establish the ``Niagara Escarpment'' viticultural 
area with the ``New York'' geographical modifier. TTB believes that if 
a future petitioner, in another area of the Niagara Escarpment, submits 
a new viticultural area petition, then a geographical modifier, such as 
Wisconsin, can be added for clarity and to avoid consumer confusion.
    TTB also received a third comment on the proposed Niagara 
Escarpment viticultural area in New York from

[[Page 53303]]

Vintners Quality Alliance of Ontario, Canada (VQAO) because Canada is 
considering designation of a Niagara Escarpment viticultural area in 
southern Ontario. The VQAO Executive Director, Laurie Macdonald, 
believes the two Niagara Escarpment viticultural areas, one in Canada 
and one in the United States, can co-exist without consumer confusion. 
As she noted, Canadian producers must include the name Canada as the 
country of origin on the wine label, and wine producers and bottlers in 
Ontario must also include ``VQA'' in conjunction with the stated 
appellation term, such as ``Niagara Escarpment.'' In light of these 
comments, we believe that wine produced in the Canadian Niagara 
Escarpment viticultural area will not be confused with the ``Niagara 
Escarpment'' wine produced in the United States.

TTB Finding

    After careful review of the petition, TTB finds that the evidence 
submitted supports the establishment of the proposed viticultural area. 
Therefore, under the authority of the Federal Alcohol Administration 
Act and part 4 of our regulations, we establish the ``Niagara 
Escarpment'' viticultural area in Niagara County, New York, effective 
30 days from this document's publication date.

Impact on Current Wine Labels

    Part 4 of the TTB regulations prohibits any label reference on a 
wine that indicates or implies an origin other than the wine's true 
place of origin. With the establishment of this viticultural area and 
its inclusion in part 9 of the TTB regulations, its name, ``Niagara 
Escarpment,'' is recognized as a name of viticultural significance. 
Consequently, wine bottlers using ``Niagara Escarpment'' in a brand 
name, including a trademark, or in another label reference as to the 
origin of the wine, must ensure that the product is eligible to use the 
viticultural area's name as an appellation of origin.
    For a wine to be eligible to use as an appellation of origin the 
name of a viticultural area specified in part 9 of the TTB regulations, 
at least 85 percent of the grapes used to make the wine must have been 
grown within the area represented by that name, and the wine must meet 
the other conditions listed in 27 CFR 4.25(e)(3). If the wine is not 
eligible to use the viticultural area name as an appellation of origin 
and that name appears in the brand name, then the label is not in 
compliance and the bottler must change the brand name and obtain 
approval of a new label. Similarly, if the viticultural area name 
appears in another reference on the label in a misleading manner, the 
bottler would have to obtain approval of a new label.
    Different rules apply if a wine has a brand name containing a 
viticultural area name that was used as a brand name on a label 
approved before July 7, 1986. See 27 CFR 4.39(i)(2) for details.

Regulatory Flexibility Act

    We certify that this regulation will not have a significant 
economic impact on a substantial number of small entities. This 
regulation imposes no new reporting, recordkeeping, or other 
administrative requirement. Any benefit derived from the use of a 
viticultural area name is the result of a proprietor's efforts and 
consumer acceptance of wines from that area. Therefore, no regulatory 
flexibility analysis is required.

Executive Order 12866

    This rule is not a significant regulatory action as defined by 
Executive Order 12866 (58 FR 51735). Therefore, it requires no 
regulatory assessment.

Drafting Information

    Nancy Sutton of the Regulations and Procedures Division drafted 
this document.

List of Subjects in 27 CFR Part 9

    Wine.

The Regulatory Amendment

0
For the reasons discussed in the preamble, we amend 27 CFR, chapter 1, 
part 9 as follows:

PART 9--AMERICAN VITICULTURAL AREAS

0
1. The authority citation for part 9 continues to read as follows:

    Authority: 27 U.S.C. 205.

Subpart C--Approved American Viticultural Areas

0
2. Amend subpart C by adding Sec.  9.186 to read as follows:


Sec.  9.186  Niagara Escarpment.

    (a) Name. The name of the viticultural area described in this 
section is ``Niagara Escarpment''. For purposes of part 4 of this 
chapter, ``Niagara Escarpment'' is a term of viticultural significance.
    (b) Approved Maps. The appropriate maps for determining the 
boundaries of the ``Niagara Escarpment'' viticultural area are five 
United States Geological Survey 1:250,000 scale topographic maps. They 
are titled:

(1) Lewiston, New York--Ontario, 1980;
(2) Ransomville, New York, 1980;
(3) Cambria, New York, 1980;
(4) Lockport, New York, 1980; and
(5) Gasport, New York, 1979.
    (c) Boundary. The Niagara Escarpment viticultural area is located 
in Niagara County, New York. The boundary of the Niagara Escarpment 
viticultural area is as described below:
    (1) On the Lewiston map, south of the village of Lewiston within 
the Brydges State Artpark, begin on the east bank of the Niagara River 
at the mouth of Fish Creek; then
    (2) Proceed north along the east bank of the Niagara River about 
0.6 mile to the northern boundary of the Brydges State Artpark; then
    (3) Proceed east along the northern boundary of the Brydges State 
Artpark about 0.8 mile to the park's northeast corner, and continue 
east in a straight line a short distance to the Robert Moses Parkway; 
then
    (4) Proceed north along the Robert Moses Parkway about 0.25 mile to 
Ridge Road, and then east on Ridge Road (State Route 104) about 0.15 
mile to the road's first intersection with the 400-foot contour line; 
then
    (5) Continue easterly along the 400-foot contour line, through the 
Ransomville map (crossing Model City Road, Dickersonville Road, and 
State Route 429) and the Cambria map (crossing Baer Road, Plank Road, 
and State Route 93/270), and pass onto the Lockport map to the contour 
line's junction with Sunset Drive; then
    (6) Proceed north on Sunset Drive 0.3 mile to its intersection with 
Stone Road, then east on Stone Road about 1.25 miles (crossing 
Eighteenmile Creek) to the intersection of Stone, Purdy, and Old 
Niagara Roads, and continue east along Old Niagara Road about 0.4 mile 
to its first intersection with the 400-foot contour line; then
    (7) Proceed northeasterly along the 400-foot contour line to its 
first junction with Slayton Settlement Road, proceed east on Slayton 
Settlement Road to Day Road, and then proceed north on Day Road to its 
first junction with the 400-foot contour line; then
    (8) Proceed easterly along the 400-foot contour line, pass onto the 
Gasport map (crossing Humphrey and Orangeport Roads), and continue to 
the contour line's junction with Quaker Road; then
    (9) Proceed north on Quaker Road about 0.4 mile to its intersection 
with State Route 104, and then east on State Route 104 to its 
intersection with Johnson Creek (at the village of Johnson Creek); then

[[Page 53304]]

    (10) Proceed south along Johnson Creek (crossing the Erie Canal), 
to the creek's junction with Mountain Road; then
    (11) Proceed west on Mountain Road to its intersection with Gasport 
Road, then south on Gasport Road to its intersection with Mill Road, 
then west on Mill Road to its intersection with Kayner Road, then north 
on Kayner Road 0.65 mile to its junction with the 600-foot contour 
line; then
    (12) Proceed westerly along the 600-foot contour line (crossing 
Cottage Road) to its junction with State Route 31, and continue west on 
State Route 31, passing onto the Lockport map and crossing the Erie 
Canal within the city of Lockport, to the intersection of State Route 
31 and Upper Mountain Road; then
    (13) Proceed north-northwesterly on Upper Mountain Road 0.65 mile 
and then northerly on Sunset Drive 0.25 mile to the junction of Sunset 
Drive and the 600-foot contour line; then
    (14) Proceed westerly along the 600-foot contour line, continuing 
through the Cambria map (crossing State Route 93/270 and then Blackman 
and Baer Roads), through the Ransomville map (crossing State Route 429 
just north of Pekin and then crossing Black Nose Spring and Model City 
Roads), and, passing onto the Lewiston map, continue westward along the 
contour line (through the Escarpment, Ramsey Ridge, and Lewiston 
Heights subdivisions), to the contour line's junction with Mountain 
View Drive (just east of State Highway 104 near the Niagara Falls 
Country Club); then
    (15) Proceed west along Mountain View Drive to its intersection 
with State Route 104, and then proceed south on State Route 104 to its 
junction with Fish Creek; then
    (16) Proceed westerly along Fish Creek and return to the beginning 
point on the east bank of the Niagara River at the mouth of Fish Creek.

    Signed: July 8, 2005.
John J. Manfreda,
Administrator.
    Approved: August 12, 2005.
Timothy E. Skud,
Deputy Assistant Secretary (Tax, Trade, and Tariff Policy).
[FR Doc. 05-17759 Filed 9-7-05; 8:45 am]
BILLING CODE 4810-31-P