[Federal Register Volume 66, Number 38 (Monday, February 26, 2001)]
[Rules and Regulations]
[Pages 11537-11540]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-4633]


=======================================================================
-----------------------------------------------------------------------

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


Fair Play Viticultural Area (2000R-170P)

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:
    <bullet> Evidence that the name of the proposed viticultural area 
is locally and/or nationally known as referring to the area specified 
in the petition;
    <bullet> Historical or current evidence that the boundaries of the 
viticultural area are as specified in the petition;
    <bullet> Evidence relating to the geographical features (climate, 
soil, elevation, physical features, etc.) which distinguish the 
viticultural features of the proposed area from surrounding areas;
    <bullet> A description of the specific boundaries of the 
viticultural area, based on features which can be found

[[Page 11538]]

on United States Geological Survey (U.S.G.S.) maps of the largest 
applicable scale; and
    <bullet> 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:
    <bullet> 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;
    <bullet> 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;
    <bullet> An article about the history of the Fair Play area written 
in 1998 by Doug Noble, Democrat correspondent, for the Mountain 
Democrat;
    <bullet> Fair Play Winery Association's 16th annual brochure 
advertising the ``Fair Play Wine Festival;''
    <bullet> Fair Play Winery Association's 17th annual brochure 
advertising the ``Fair Play Wine Festival;''
    <bullet> The Articles of Incorporation of the Fair Play Winery 
Association; and
    <bullet> 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?

    <bullet> 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

[[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.
    <bullet> 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.
    <bullet> 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.
    <bullet> 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 Sec. 9.168 to read as 
follows:


Sec. 9.168  Fair Play.

    (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

[[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