[Federal Register: September 8, 2005 (Volume 70, Number 173)]
[Rules and Regulations]
[Page 53300-53304]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr08se05-4]
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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.
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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--
Evidence that the proposed viticultural area is locally
and/or nationally known by the name specified in the petition;
Historical or current evidence that supports setting the
boundary of the proposed viticultural area as the petition specifies;
Evidence relating to the geographical features, such as
climate, soils, elevation, and physical features, that distinguish the
proposed viticultural area from surrounding areas;
A description of the specific boundary of the proposed
viticultural area, based on features found on United States Geological
Survey (USGS) maps; and
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:
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)
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)
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
)
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