ATF

Sample Block


Bureau of Alcohol, Tobacco, Firearms and Explosives

DEPARTMENT OF THE TREASURY

Bureau of Alcohol, Tobacco and Firearms

27 CFR Part 9

[T.D. ATF-395 Re: Notice No. 851]
RIN 1512-AA07

 
Texas Davis Mountains Viticultural Area (97-105)

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

ACTION: Final rule, Treasury decision.

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SUMMARY: The Bureau of Alcohol, Tobacco and Firearms (ATF) is 
establishing a viticultural area located in Jeff Davis County, Texas, 
to be known as ``Texas Davis Mountains.'' The petition for this 
viticultural area was filed by Maymie Nelda Weisbach of Blue Mountain 
Vineyard, Inc. 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 allows wineries to designate 
the specific areas where the grapes used to make the wine were grown 
and enables consumers to better identify the wines they purchase.

EFFECTIVE DATE: May 11, 1998.

FOR FURTHER INFORMATION CONTACT: Marjorie D. Ruhf, Regulations 
Division, Bureau of Alcohol, Tobacco and Firearms, 650 Massachusetts 
Avenue, NW., Washington, DC 20226 (202-927-8230).

SUPPLEMENTARY INFORMATION:

Background

    On August 23, 1978, ATF published Treasury Decision ATF-53 (43 FR 
37672, 54624) revising regulations in 27 CFR part 4. These regulations 
allow the establishment of definite American viticultural areas. The 
regulations also 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 a new part 9 to 27 CFR, providing for the listing of 
approved American viticultural areas. Section 4.25a(e)(1), title 27, 
CFR, defines an American viticultural area as a delimited grape-growing 
region distinguishable by geographical features, the boundaries of 
which have been delineated in subpart C of part 9. Section 4.25a(e)(2) 
outlines the procedure for proposing an American viticultural area. Any 
interested person

[[Page 11827]]

may petition ATF to establish a grape-growing region as a viticultural 
area. The petition should include:
    (a) Evidence that the name of the proposed viticultural area is 
locally and/or nationally known as referring to the area specified in 
the petition;
    (b) Historical or current evidence that the boundaries of the 
viticultural area are as specified in the petition;
    (c) Evidence relating to the geographical features (climate, soil, 
elevation, physical features, etc.) which distinguish the viticultural 
features of the proposed area from surrounding areas;
    (d) 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
    (e) A copy of the appropriate U.S.G.S. map(s) with the boundaries 
prominently marked.

Petition

    ATF has received a petition from Maymie Nelda Weisbach, of Blue 
Mountain Vineyard, Inc., proposing to establish a viticultural area in 
Jeff Davis County, Texas, to be known as ``Texas Davis Mountains.'' The 
viticultural area is located in the Trans-Pecos region of west Texas. 
The entire area contains approximately 270,000 acres. The petitioner 
stated that approximately 40 acres are planted to vineyards, and that 
Blue Mountain Vineyard is the only commercial grower currently active 
within the proposed viticultural area.

Notice of Proposed Rulemaking

    In response to this petition, ATF published a notice of proposed 
rulemaking, Notice No. 851, in the Federal Register on May 6, 1997 [62 
FR 24622], proposing the establishment of the Davis Mountains 
viticultural area. The notice requested comments from interested 
persons by July 7, 1997.

Comments on Notice of Proposed Rulemaking

    ATF received five letters of comment in response to Notice No. 851. 
The petitioner wrote to give additional information about growers in 
the area. The Honorable Peggy Robertson, County Judge of Jeff Davis 
County, Texas, wrote to express support for the establishment of the 
viticultural area. Dr. Charles O. McKinney, Director of Research for 
the University of Texas System, wrote to support the establishment of 
the Davis Mountains area and comment on the boundaries. James D. 
Voorhees, Esq., of Davis, Graham & Stubbs, LLP, Attorneys at Law, wrote 
to express support for establishment of the area and commented on the 
proposed name. George Ray McEachern, Professor and Extension 
Horticulturist at the Texas A&M University System's Texas Agricultural 
Extension Service, wrote to support the designation of the area as 
``Texas Davis Mountains.'' The comments on specific proposals will be 
discussed in the supplementary information covering such proposals.

Evidence of Name

    The petitioner provided evidence that the name ``Davis Mountains'' 
is locally known as referring to the area specified in the petition, 
and suggested that the area be designated as ``Texas Davis Mountains'' 
to aid in national recognition of the area. She noted that, outside of 
the State of Texas, the name Davis Mountains may not be well known. 
Evidence supporting the use of the name ``Davis Mountains'' includes:
    (a) The name ``Davis Mountains'' is used to describe the northern 
portion of the viticultural area on a U.S.G.S. map submitted with the 
petition (Mount Livermore, Texas--Chihuahua). There is a park named 
``Davis Mountain State Park'' in the southeastern portion of the 
viticultural area.
    (b) The 1952 edition of The Handbook of Texas, published by the 
Texas State Historical Association, describes the Davis Mountains. The 
location and other features described in this entry are consistent with 
the petition.
    (c) The 1968 edition of Texas Today, a book in the Harlow State 
Geography Series, from the Harlow Publishing Corporation, describes the 
Davis Mountains as the most extensive and among the highest of the 
Texas mountain groups.
    (d) Finally, the Champion Map of Texas, and the Exxon Travel Club 
Map of the United States, both identify the Davis Mountains by name.
    After reviewing available resources and finding no references to 
any other ``Davis Mountains,'' ATF used the name ``Davis Mountains'' 
unmodified by the word ``Texas'' in the notice; however, ATF also 
solicited comments on the need for the additional designation of 
``Texas'' for the proposed viticultural area. ATF proposed using the 
name ``Davis Mountains'' (as opposed to ``Texas Davis Mountains'') 
based upon national recognition of the name ``Davis Mountains'' as an 
area in Texas, known both as the site of the McDonald Observatory and 
as a tourist destination for its history, scenery and wildlife. In 
response to this request for comments on the name of this proposed 
viticultural area, James D. Voorhees, Esq., of Davis, Graham & Stubbs, 
LLP, Attorneys at Law, wrote:

    * * * there may be a wine-growing area in one of the midwestern 
states which is not yet designated as a viticultural area, but which 
is known locally as ``Davis Mountains''. * * * this would support 
the designation of the viticultural area sought by Mrs. Weisbach as 
``Texas Davis Mountains.''

In order to avoid possible consumer confusion, ATF is adopting the name 
``Texas Davis Mountains'' in this final rule. ATF believes it is better 
to allow this viticultural area to bear a distinguishing name from its 
inception rather than revise the name later after the establishment of 
another area with a similar name.

Evidence of Boundaries

    The petitioner chose highways to mark the boundary of the 
viticultural area because these highways parallel geographic features 
such as canyons, creeks and escarpments, which represent natural 
boundaries between the mountains and the surrounding desert and define 
the area. In support of this approach, she provided a copy of 
``Texas,'' the Houston Chronicle Magazine, for June 2, 1996. The cover 
story was ``High Mountain Vistas--Driving the 73-mile Loop Around the 
Davis Mountains.'' In a map associated with the article, the routes 
used for the driving tour are the same as those selected by the 
petitioner, except the northern boundary. The driving tour 
recommendation followed a route to the north of the proposed northern 
boundary, which the petitioner drew using other features. Dr. Charles 
O. McKinney, Director of Research for the University of Texas System, 
also noted in his comment that the area known as Davis Mountains 
extends more to the north than indicated by the boundaries, but made no 
specific suggestion for amendment of the northern boundary. No change 
was made to the northern boundary as a result of this comment.
    During the comment period, the petitioner wrote to say that she had 
learned about two additional growers, one of them within the proposed 
boundary (in the Davis Mountain Resort area), and another just outside 
the boundary at the southeast corner of the proposed area. She asked 
that the border be redrawn to include the vineyard just outside the 
proposed boundary and noted ``the same grape growing conditions would 
prevail'' in that nearby area. Dr. McKinney also noted his support for 
expanding the viticultural area to include the vineyard to the 
southeast, saying the ``grapes from this vineyard are very similar in 
quality and growing characteristics as vineyards

[[Page 11828]]

located a few miles away, but within the proposed viticultural area.'' 
ATF is adopting this proposed change and amending the boundary to 
include the additional vineyard. With the addition of these two 
vineyards, the viticultural area has three growers and approximately 50 
acres planted to grapes.

Geographical Features

    The viticultural area is described in Great Texas Getaways, 
copyright 1992, by Ann Ruff, as follows:

    No matter which way you drive into the Davis Mountains you will 
have to face the barren terrain without the taste of cool water. But 
when you reach this wonderful oasis, those long, dreary miles are 
more than worth the reward. Here the days are fresh and cool, the 
nights brisk, and the scenery fantastic.

    The viticultural area is distinguishable from surrounding areas 
primarily by its altitude, which contributes to the geographic and 
climatic features which provide for excellent grape-growing.
    The petitioner provided the following evidence of the viticultural 
area's distinctive character:

Topography

    The U.S.G.S. topographic maps used to define the viticultural area 
show a mountainous area varying in elevation from 4,500 to 8,300 feet, 
surrounded by flatter terrain. The petitioner adds that these mountains 
are the second-highest range in Texas. The northern and eastern limits 
are clearly defined by escarpments. Sharp boundaries in the west and 
south, however, are lacking as the same formations continue into the 
Ord and Del Norte Mountains. The Chihuahua desert extends for miles in 
all directions, its gently rolling grasses interspersed with yucca and 
agave.

Soil

    The Davis Mountains were created about 35 million years ago by the 
same volcanic thrust that formed the front range of the Rockies. The 
mountains are composed of granitic, porphrytic and volcanic rocks, as 
well as limestones of various ages.

Climate

    The cover story in ``Texas,'' the Houston Chronicle Magazine, for 
June 2, 1996, titled ``High mountain vistas, driving the 73-mile loop 
around the Davis Mountains'' by Leslie Sowers, described the 
viticultural area as a ``mountain island * * * that is cooler, wetter, 
and more biologically diverse than the vast plains of the Chihuahua 
desert that surround it.'' The article went on to note that the Davis 
Mountains receive 20 inches of rainfall a year, contrasted with 10 
inches a year in the surrounding desert.

Boundary

    The boundary of the Texas Davis Mountains viticultural area may be 
found on two United States Geological Survey (U.S.G.S.) maps with a 
scale of 1:100,000. The boundary is described in Sec. 9.155.

Executive Order 12866

    It has been determined that this proposed 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.

Regulatory Flexibility Act

    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.

Paperwork Reduction Act

    The provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 
3507(j)) and its implementing regulations, 5 CFR Part 1320, do not 
apply to this final rule because no requirement to collect information 
is imposed.

Drafting Information

    The principal author of this document is Marjorie D. Ruhf, 
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 Sec. 9.155 to read as 
follows:


Sec. 9.155  Texas Davis Mountains.

    (a) Name. The name of the viticultural area described in this 
section is ``Texas Davis Mountains.''
    (b) Approved map. The appropriate maps for determining the boundary 
of the Texas Davis Mountains viticultural area are two U.S.G.S. metric 
topographical maps of the 1:100 000 scale, titled:
    (1) ``Fort Davis, Texas,'' 1985.
    (2) ``Mount Livermore, Texas--Chihuahua,'' 1985.
    (c) Boundary. The Texas Davis Mountains viticultural area is 
located in Jeff Davis County, Texas. The boundary is as follows:
    (1) The beginning point is the intersection of Texas Highway 17 and 
Farm Road 1832 on the Fort Davis, Texas, U.S.G.S. map;
    (2) From the beginning point, the boundary follows Highway 17 in a 
southeasterly and then southwesterly direction until it reaches the 
intersection of Limpia Creek with the unnamed stream which flows 
through Grapevine Canyon on the Fort Davis, Texas, U.S.G.S. map;
    (3) The boundary then proceeds in a straight line in a 
southwesterly direction until it meets Highway 118 at a gravel pit 1\3/
4\ miles southeast of the intersection of Highway 118 and Highway 17;
    (4) The boundary then proceeds in a straight line east by southeast 
until it meets Highway 166 at its junction with Highway 17;
    (5) The boundary then follows Highway 166 in a southwesterly 
direction onto the Mt. Livermore, Texas-Chihuahua, U.S.G.S. map;
    (6) The boundary then continues to follow Highway 166 in a westerly 
direction;
    (7) The boundary then continues to follow Highway 166 as it turns 
in a northerly and then northeasterly direction to the point where it 
meets Highway 118;
    (8) The boundary then follows Highway 118 in a northerly direction 
until it reaches a point where it intersects with the 1600 meter 
contour line, just north of Robbers Roost Canyon;
    (9) The boundary then proceeds in a straight line due east for 
about two miles until it reaches the 1600 meter contour line to the 
west of Friend Mountain;
    (10) The boundary then follows the 1600 meter contour line in a 
northeasterly direction until it reaches the northernmost point of 
Friend Mountain;
    (11) The boundary then diverges from the contour line and proceeds 
in a

[[Page 11829]]

straight line east-southeast until it reaches the beginning point of 
Buckley Canyon, approximately three fifths of a mile;
    (12) The boundary then follows Buckley Canyon in an easterly 
direction to the point where it meets Cherry Canyon;
    (13) The boundary then follows Cherry Canyon in a northeasterly 
direction to the point where it meets Grapevine Canyon on the Mt. 
Livermore, Texas-Chihuahua, U.S.G.S. map;
    (14) The boundary then proceeds in a straight line from the 
intersection of Cherry and Grapevine Canyons to the peak of Bear Cave 
Mountain, on the Fort Davis, Texas, U.S.G.S. map;
    (15) The boundary then proceeds in a straight line from the peak of 
Bear Cave Mountain to the point where Farm Road 1832 begins;
    (16) The boundary then follows Farm Road 1832 back to its 
intersection with Texas Highway 17, at the point of beginning.

    Dated: February 6, 1998.
John W. Magaw,
Director.

    Approved: February 23, 1998.
Dennis M. O'Connell,
Acting Deputy Assistant Secretary (Regulatory, Tariff and Trade 
Enforcement).
[FR Doc. 98-6005 Filed 3-10-98; 8:45 am]
BILLING CODE 4810-31-U