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###### Department of the Treasury

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

          - 27 CFR Part 9 
          - [T.D. ATF-440 Re: Notice No. 900]
          - RIN: 1512-AA07 

# AGENCY:

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

# ACTION:

Final rule, Treasury decision. 

# SUMMARY:

The Bureau of Alcohol, Tobacco and Firearms (ATF) is establishing a viticultural area located in southern El Dorado County, California, to be known as “Fair Play.” Brian Fitzpatrick, President of Fair Play Winery Association, filed the petition for this area. ATF believes that the establishment of viticultural areas and the subsequent use of viticultural area names as appellations of origin in wine labeling and advertising will help consumers identify the wines they may purchase. It will also allow wineries to better designate the specific grape-growing area in which the grapes used in their wine were grown. 

# EFFECTIVE DATE:

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

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

Section 4.25a(e)(1), title 27, CFR, defines an American viticultural area as a delimited grape-growing region distinguishable by geographical features. Viticultural features such as soil, climate, elevation, topography, etc., distinguish it from surrounding areas. 

### What Is Required To Establish a Viticultural Area? 

Any interested person may petition ATF to establish a grape-growing region as a viticultural area. The petition should include: 
    - Evidence that the name of the proposed viticultural area is locally and/or nationally known as referring to the area specified in the petition;
    - Historical or current evidence that the boundaries of the viticultural area are as specified in the petition;
    - Evidence relating to the geographical features (climate, soil, 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       ( print page 11538)                          on United States Geological Survey (U.S.G.S.) maps of the largest applicable scale; and                
    - A copy of the appropriate U.S.G.S. map(s) with the boundaries prominently marked.

## 2. Fair Play Petition 

ATF received a petition from Brian Fitzpatrick, President of Fair Play Winery Association, proposing to establish a viticultural area in southern El Dorado County, California, known as “Fair Play.” The viticultural area is located entirely within the existing “El Dorado” and “Sierra Foothills” viticultural areas described in 27 CFR 9.61 and 9.120. 

The area encompasses approximately 33 square miles. The total acreage of vineyards is approximately 350 acres, of which 250 acres are currently in production. The viticultural area now boasts ten bonded wineries and a number of vineyards ranging in size from less than five acres to over seventy acres. 

### Notice of Proposed Rulemaking 

                    In response to the petition, ATF published a notice of proposed rulemaking, Notice No. 900, in the                     **Federal Register**                     on July 25, 2000 (65 FR 45739), proposing the establishment of the Fair Play viticultural area. The notice requested comments from interested persons by September 25, 2000.                 

### Comments on Notice of Proposed Rulemaking 

ATF received one letter in response to Notice No. 900. Sherrie Busby-Graham and Elliot Graham wrote to express support for the establishment of the viticultural area and concurred with the change to the northern boundary proposed by the petitioner. The petitioner wrote to give additional information and suggested a change to the northern boundary. The specific proposal will be discussed in the boundary section of the supplementary information. 

### What Name Evidence Has Been Provided? 

                    Fair Play viticultural area takes its name from an old gold mining camp during the California gold rush. Although Fair Play was at first only a mining camp, the town later became a trading center and post office for drift and hydraulic mines in the area. The                     *Alta Californian*                     newspaper dated December 21, 1853, mentions Fair Play as a prosperous little mining town with several stores and hotels.                 

Today, the name “Fair Play” is used to designate a former school, an existing crossroads store, and a farm road located within the boundaries. In 1998, residents of Fair Play petitioned the United States Postal Service to acknowledge Fair Play as a postal address. The petition was granted and Fair Play now shares the Zip Code, 95684, with Somerset. 

The first commercial vineyard and winery in the viticultural area was established in 1887 by a Civil War veteran, Horace Bigelow. Bigelow planted 4,000 grape vines and by 1898 was producing between 600 and 1,000 gallons of wine each year. Today, the Fair Play viticultural area is gaining recognition as a wine growing area and is featured in the media, on some wine labels, and in the petitioner's promotional materials. The following was provided as name evidence: 
    - The Aukum, California 1952 (photorevised 1973) U.S.G.S. map used to show the original outlined boundaries proposed by the petitioner and show the town of Fair Play and Fair Play School located within the viticultural area;
    - Correspondence from Jim McBroom, Manager of Operations Programs Support with the United States Postal Service, indicating that Fair Play, California 95684 is an authorized last line mailing address;
    - An article about the history of the Fair Play area written in 1998 by Doug Noble, Democrat correspondent, for the Mountain Democrat;
    - Fair Play Winery Association's 16th annual brochure advertising the “Fair Play Wine Festival;”
    - Fair Play Winery Association's 17th annual brochure advertising the “Fair Play Wine Festival;”
    - The Articles of Incorporation of the Fair Play Winery Association; and
    - An excerpt from a book in progress by historian Erick Costa called Gold and Wine, A History of Winemaking in El Dorado County, California.

### What Boundary Evidence Has Been Provided? 

The name “Fair Play” is used to designate the entire area bisected by Fair Play Road. The general boundaries are the canyon of the Middle Fork of the Cosumnes River to the north; rugged terrain and higher elevation to the east; a change in soils to the southeast and south; Cedar Creek running through a deep canyon to the southwest; Cedar Creek flowing into a short section of Scott Creek and into a mile long section of the South Fork of the Cosumnes River (near River Pines) thence northerly cross country to the Middle Fork of the Cosumnes River. In support of this approach, the petitioner provided a copy of U.S.G.S. map (Aukum, California) on which the original boundaries proposed by the petitioner are outlined and the town of Fair Play is prominently labeled. The petitioner also provided other maps that show that Fair Play Road runs through the viticultural area, beginning at Grays Corner (shown as Melsons Corner on the U.S.G.S. map) and running generally southeast, east and south to Omo Ranch Road. The Fair Play viticultural area primarily consists of those farms and ranches served by Fair Play Road and its “tributaries.” 

Sherrie Busby-Graham and Elliot Graham noted in their comments that the area known as “Fair Play” extends more to the north than indicated by the boundaries proposed by the petitioner. During the comment period, the petitioner wrote to say that he had learned about an additional grower just outside of the proposed northern boundary and asked that the border be redrawn to include the vineyard. The petitioner asserts that this additional area possesses the same granitic sandy loam soil that is the benchmark of the Fair Play viticultural area. He suggested using the 2200 foot contour line where it intersects with Grizzly Flat Road, east of Somerset. Then following that line north and then east until it intersects with the section line between Sections 9 and 10. Then following that section line south to Grizzly Flat Road where it adjoins the original proposed boundary line. ATF is adopting this proposed change and amending the boundary to include the additional vineyard. 

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

    - Soil: The Fair Play viticultural area is characterized by deep, moderately to well drained, granitic soils of the Holland, Shaver, and Musick series. These soils consist of sandy loams and coarse sandy loams, with an effective average rooting depth between 40 and 60 inches. The soil maps taken from the USDA Soil Survey show the specific areas where each of these soils predominate; the boundaries were specifically designed to include these three soil series, and to exclude other soils which are either not granitic, or shallow, or poorly drained. The areas to the north and east of the boundaries are predominately shallow granitic soils of the Chawanakee and Chaix series. The northern and eastern boundaries are drawn primarily based on terrain and ease of description, but with the intent to generally exclude these soils. The southeastern and southern boundaries       ( print page 11539)                          of the Fair Play viticultural area, the waterways of Cedar Creek into Scott Creek into the South Fork of the Cosumnes River, lay out a clear geological demarcation where the granitic soils predominate and the volcanic soils begin. Thus, the Fair Play viticultural area has a soil association that sets it apart from the rest of the Sierra Foothills and El Dorado viticultural areas.                 
    - Terrain and Topography: The arable terrain within the Fair Play viticultural area is generally composed of rolling hillsides and rounding ridge tops. At these elevations (2,000-3,000) each vineyard's topographic location in relationship to the immediate surroundings is of utmost importance to minimize the negative effects of late spring frosts. Most of the existing vineyards are situated on the ridge tops or hillsides so there is lower ground for the cold air to drain.

To the east and southeast, the boundaries include terrain too rugged for commercial viticulture. This is also true of Coyote Ridge to the south. Although little vineyard activity is anticipated in these steep canyon lands, the use of the Middle Fork of the Cosumnes River, Cedar Creek, Scott Creek, and South Fork of the Cosumnes River make easily understood and prominent boundaries.
    - Elevation: The lowest elevations in the area, about 2,000 feet, occur along Perry Creek and the North and South Forks of Spanish Creeks where they flow west out of the Fair Play viticultural area. The lowest existing vineyards sit at about 2,000 feet near Mt. Aukum. The elevation rises to the north, east and south to a maximum of about 2,800 feet above Slug Gulch Road and Walker Ridge.

To the north, the steep sides of the canyon of the Middle Fork of the Cosumnes River are not suitable for viticulture. The bottom land along the river, ranging from 1,700 to 1,800 feet elevation, is at least two hundred feet lower in elevation than the lowest points included within the boundaries. 

The rugged terrain east of the boundaries, and the volcanic “caps” to the southeast and south quickly rise above 2,800 feet. 

Elevation is significant because of its effect on growing conditions in the Sierra Nevada Foothills. 
    - Climatic Features: The U.S.D.A. Soil Survey shows that in this part of Sierra Foothills, rainfall generally increases along with the elevation. The isobars generally run from the northwest to southeast, similar to the general run of the elevation contour lines. The Fair Play viticultural area receives between 35 to 40 inches of rain in an average year, while the lower areas to the west and southwest of Fair Play receive 35 inches or less.

The U.S.D.A. chart for the length of growing season follows the reverse pattern; as elevation increases, the growing season decreases. Fair Play enjoys an average growing season of between about 230 and 250 days; the areas to the west and southwest show over 250 days. Thus, the Fair Play viticultural area enjoys more rainfall, but with a shorter growing season, than the areas to the west and southwest. 

Based on the standard University of California at Davis (UCD) temperature summation definition of climatic regions or zones, the Fair Play viticultural area would appear to fall into high Region 3 (less than 3,500 degree days). The areas to the west and southwest fall into low Region 4 (over 3,500 degree days). 

## 3. Regulatory Analyses and Notices 

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

It has been determined that this regulation 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 Final 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 Final 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, 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 § 9.168 to read as follows:                     

§ 9.168 

                            (a)                             *Name.*                             The name of the viticultural area described in this section is “Fair Play.”                         

                            (b)                             *Approved Maps.*                             The appropriate maps for determining the boundary of the Fair Play viticultural area are three United States Geological Survey (U.S.G.S.) topographic maps (7.5 minute series; quadrangles). They are titled:                         

(1) “Omo Ranch, California,” 1952 (photorevised 1973). 

(2) “Aukum, California,” 1952 (photorevised 1973). 

(3) “Camino, California,” 1952 (photorevised 1973). 

(c) Boundaries. The Fair Play viticultural area is located in El Dorado County, California and is located entirely within the existing Sierra Foothills and El Dorado viticultural areas. The boundary for Fair Play is as follows: 

(1) The beginning point of the boundary is the intersection of the Middle Fork of the Cosumnes River and the U.S.G.S. map section line between Sections 26 and 27, T. 9 N., R. 11 E. (“Aukum” Quadrangle); 

(2) From the beginning point, the boundary follows northeast along the Middle Fork of the Cosumnes River until it meets an unnamed medium-duty road (Mt. Aukum Road or El Dorado County Road E-16) just as it crosses onto the “Camino” Quadrangle map; 

(3) The boundary continues then northeast along Mt. Aukum Road to its intersection with Grizzly Flat Road at the town of Somerset (“Camino” Quadrangle); 

(4) The boundary continues east along Grizzly Flat Road to its intersection with the 2200” contour line. 

(5) The boundary continues along the 2200” contour line north and then east until it intersects with the U.S.G.S. map section line between Sections 9 and 10, T. 9 N., R. 12 E. (“Camino” Quadrangle): 

                            (6) The boundary then proceeds south along the U.S.G.S. map section line                                   ( print page 11540)                                between Sections 9 and 10, T. 9 N., R. 12 E., to its intersection with the Middle Fork of the Cosumnes River (“Aukum” Quadrangle);                         

(7) The boundary then follows along the Middle Fork of the Cosumnes River in a southeasterly direction onto the “Omo” Quadrangle map and continues until it meets the range line between R. 12 E. and R. 13 E. (“Aukum” Quadrangle and “Omo Ranch” Quadrangle); 

(8) The boundary then follows south along the range line between R. 12 E. and R. 13 E. to its intersection with an unnamed medium-duty road in T. 8 N. (Omo Ranch Road) (“Omo Ranch” Quadrangle); 

(9) The boundary then continues west in a straight line approximately 0.3 miles to the point where Cedar Creek intersects with the 3200-foot contour line, within Section 1, T. 8 N.,R. 12 E. (“Omo Ranch” Quadrangle); 

(10) The boundary follows along Cedar Creek west and then southwest until it empties into Scott Creek (“Aukum” Quadrangle); 

(11) The boundary then proceeds west along Scott Creek until it empties into the South Fork of the Cosumnes River (“Aukum” Quadrangle); 

(12) The boundary continues west along the South Fork of the Cosumnes River to its intersection with the U.S.G.S. map section line between Sections 14 and 15, T. 8 N., R. 11 E. (“Aukum” Quadrangle); and 

(13) Finally, the boundary follows north along the section line back to its intersection with the Middle Fork of the Cosumnes River, the point of the beginning. (“Aukum” Quadrangle). 

Dated: December 20, 2000. 

Bradley A. Buckles, 

Director. 

Dated: January 5, 2001.

Timothy E. Skud,

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

[FR Doc. 01-4633 Filed 2-23-01; 8:45 am] 

BILLING CODE 4810-31-P