ATF

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Bureau of Alcohol, Tobacco, Firearms and Explosives

TABLE OF CONTENTS

 

Page

Preface………………………………………………………………………………

 

Definitions………………………………………………………………………….

 

Johannisberg Riesling; Deferral of

Compliance Date

(T.D. 405)………………………………………………………………….

 

Procedures for the Issuance, Denial, and Revocation

of Certificates

of Label Approval, Certificates of Exemption

From Label Approval,

and Distinctive Liquor Bottle Approvals (T.D.

406)………………………..

 

Procedures for the Issuance, Denial, and Revocation of Certificates

of Label Approval, Certificates of Exemption From Label Approval,

and Distinctive Liquor Bottle Approvals; Correction (T.D.406a)………….

 

Establishment of the San Francisco Bay Viticultural Area

and the Realignment of the Boundary of the Central Coast

Viticultural Area (T.D. 407)…………………………………………………

 

Chiles Valley Viticultural Area (T.D. 408)………………………………….

 

 

 

Preface

 

The Alcohol, Tobacco and Firearms Quarterly Bulletin is the

authoritative instrument of the Bureau for announcing official

rulings and procedures, and for publishing Treasury decisions,

legislation, administrative matters, and other items of general

interest. It incorporates, into one publication, matters of the

Bureau, which are of public record.

The Bureau publishes rulings and procedures to promote uniform

application of the laws and regulations it administers. Rulings

interpret the requirement of laws and regulations and apply retroactively

unless otherwise indicated; whereas, procedures establish methods

for performing operations to comply with such laws and regulations.

Rulings and procedures reported in the Bulletin do not have

the force and effect of Treasury Department regulations but they

may be used as precedents. In applying published rulings and

procedures, the effect of subsequent legislation, regulations,

court decisions, rulings and procedures must be considered. Concerned

parties are cautioned against reaching the same conclusions in

other cases unless the facts and circumstances are substantially

the same.

 

 

 

Definitions

 

Rulings and procedures that have an effect on previous

rulings or procedures use the following defined terms to describe

the effect:

 

AMPLIFIED is used in a situation where no change is

being made in a prior published position, but the prior position

is being extended to apply to a variation of the fact situation

set forth in the new ruling. Thus, if an earlier ruling held

that a principle applied to A, and the new ruling holds that

the same principle also applies to B, the earlier ruling is amplified.

CLARIFIED is used in a situation

where the language in a prior ruling is being made clear because

the language has caused, or may cause, some confusion. It is

not used where a position in a prior ruling is being changed.

DECLARED OBSOLETE is used

in a situation where a previously published ruling is not considered

determinative with respect to future transactions. This term

is most commonly used in a ruling that lists previously published

rulings that are declared obsolete because of changes in law

or regulations. A ruling may also be declared obsolete because

its substance has been included in regulations subsequently adopted.

MODIFIED is used in a situation

where the substance of a previously published position is being

changed. Thus, if a prior ruling held that a principle applied

to A but not to B, but the new ruling hold that it applies to

both A and B, the prior ruling is modified.

REVOKED is used in a situation

where the position in the previously published ruling is not

correct and the correct position is being stated in the new ruling.

Rulings which have been revoked have no further effect.

SUPERSEDED is used in a variety

of situations. The term may be used where the new ruling amplifies

a prior ruling if both the position taken in the prior ruling

and the position as amplified are contained in the text of the

new ruling. The term may be similarly used where the new ruling

clarifies or modifies a prior ruling. The term may also be used

where, for the purpose of updating references, the new ruling

does nothing more than restate the substance and situation of

a prior ruling. For example, a ruling issued under former statutes

and regulations (e.g. the 1939 Code-

26 CFR Part 225) may be reissued under the current statutes and

regulations (e.g. the 1954 Code- Part

201). Lastly, the term may be used when it is desired to republish

in a single ruling a series of situations, names, etc., that

were previously published over a period of time in separate rulings.

SUPPLEMENTED is used in situations

in which a list, such as a list of curios and relics, is published

in a ruling and that list is expanded by adding further items

in subsequent rulings. After the original ruling has been supplemented

several items, a new ruling may be published that includes the

list in the original ruling and the additions, and supersedes

all prior rulings in the series.

 

 

 

 

 

 

 

 

Treasury Decisions - I

 

Subpart A - ALCOHOL

 

TITLE 27- ALCOHOL, TOBACCO PRODUCTS

AND FIREARMS- CHAPTER I -

BUREAU OF ALCOHOL, TOBACCO AND FIREARMS, DEPARTMENT OF THE TREASURY

 

Johannisberg Riesling; Deferral of Compliance

Date

 

T.D. ATF-405

 

27 CFR Part 4

 

ACTION: Final rule, Treasury decision.

 

SUMMARY: This final rule temporarily extends the applicability

date with respect to the use of the term Johannisberg Riesling

set forth in Sec. 4.92(b) in T.D. ATF-370. The reason ATF is

deferring this date is to allow for the sufficient review and

evaluation of comments and any additional information received

as a result of a notice of proposed rulemaking, Notice Number

871, proposing to extend the phase-out for the term Johannisberg

Riesling as a designation for American wines for an additional

seven years.

 

DATES: This document is effective January 1, 1999.

 

FOR FURTHER INFORMATION CONTACT: Ms. Teri Byers, Regulations

Division,

650 Massachusetts Avenue, NW, Washington, DC 20226; Telephone

(202) 927-8195, or e-mail: <thbyers@atfhq.atf.tres.gov>

 

SUPPLEMENTARY INFORMATION

 

Background

 

Treasury Decision ATF-370, 61 FR 522, January 8, 1996, adopted

a list of grape variety names which ATF has determined to be

appropriate for use in designating American wines. The Treasury

decision did not include Johannisberg Riesling in the list of

prime names, either as a prime grape name or as a synonym. Johannisberg

Riesling was instead listed as an alternative name in Sec. 4.92

for use in advertising and labeling wines only until January

1, 1999, after which the required varietal designation for this

wine would be Riesling or the synonym White Riesling.

 

Petition

 

ATF received a petition from the law firm of Buchman &

O’Brien, on behalf of trade associations representing United

States wineries. This petition requests ATF to extend the phase-out

period for the term Johannisberg Riesling for an additional seven

years to January

1, 2006. The petition asserts that this change would allow

American wineries additional time to educate the consumers and

provide additional time for wineries to change labels, packaging,

and merchandising material for this wine. Based on the evidence

presented

in the petition as well as documented support and marketing

information, ATF is issuing a notice of proposed rulemaking that

solicits comments and requests further information to determine

whether the phase-out date should be extended to January 1, 2006.

Because ATF needs time to receive and consider the evidence

produced as a result of this notice, ATF is temporarily extending

the current phase-out date provided by T.D. ATF-370 for the term

Johannisberg Riesling from January 1, 1999, to September 30,

1999. ATF

wishes to make it clear that neither the airing of this petition

nor the issuance of this rule represents any change in ATF’s

position to eventually phase-out use of the term Johannisberg

Riesling.

 

Notice and Public Procedure

 

Because this final rule merely postpones the compliance date

with respect to the use of Johannisberg Riesling as an alternative

name in T.D. ATF-370, and in view of the immediate need for time

to solicit and review comments received as a result of the notice

of proposed rulemaking discussed above, it is found to be impractical

and contrary

to the public interest to issue this rule with notice and

public procedure under 5 U.S.C. 553(b), and with a 30-day delayed

effective date under 5 U.S.C. 553(d).

 

Regulatory Flexibility Act

 

The provisions of the Regulatory Flexibility Act relating

to a final regulatory flexibility analysis (5 U.S.C. 604) are

not applicable to this final rule because the agency was not

required to publish a general notice of proposed rulemaking under

5 U.S.C. 553 or any other

law.

 

Executive Order 12866

 

It has been determined that this final rule is not a significant

regulatory action as defined in Executive Order 12866. Therefore,

a Regulatory Assessment is not required.

 

Paperwork Reduction Act

 

The provisions of the Paperwork Reduction Act of 1995 (44

U.S.C. 3507) and its implementing regulations, 5 CFR Part 1320,

do not apply to this final rule because no requirement to collect

information is imposed.

 

List of Subjects in 27 CFR Part 4

 

Advertising, consumer protection, Customs duties and inspections,

Imports, Labeling, Packaging and containers, Wine.

 

Disclosure

 

Copies of the petition, the notices, the Treasury decision,

and all comments are available for public inspection during normal

business hours at: ATF Reading Room, Room 6300, 650 Massachusetts

Avenue NW, Washington, DC.

 

Drafting Information

 

The principal author of this document is Ms. Teri Byers, Regulations

Division, Bureau of Alcohol, Tobacco and Firearms.

Therefore, pursuant to the authority set forth in 27 U.S.C.

205(e), ATF is postponing the compliance date with respect to

the use of the term Johannisberg Riesling set forth in 27 CFR

4.92(b) to September 30, 1999.

 

 

Signed: October 16, 1998.

 

John W. Magaw,

Director.

 

Approved: November 20, 1998.

 

John P. Simpson,

Deputy Assistant Secretary (Regulatory, Tariff and Trade

Enforcement).

 

[FR Doc. 98-34843 Filed 12-31-98; 2:07 pm]

 

 

TITLE 27 ¾ ALCOHOL, TOBACCO

PRODUCTS AND FIREARMS ¾ CHAPTER

I ¾ BUREAU OF ALCOHOL TOBACCO

AND FIREARMS, DEPARTMENT OF THE TREASURY

 

Procedures For The Issuance, Denial,

And Revocation Of Certificates Of Label Approval, Certificates

Of Exemption From Label Approval, And Distinctive Liquor Bottle

Approvals

 

TD ATF - 406

27 CFR Parts 4, 5, 7, 13, and 19

AGENCY: Bureau of Alcohol, Tobacco and Firearms (ATF),

Treasury.

 

ACTION: Final Rule, Treasury decision.

 

SUMMARY: The Bureau of Alcohol, Tobacco and Firearms

(ATF) is issuing regulations setting forth the procedures for

the issuance, denial, and revocation of certificates of label

approval (COLAs), certificates of exemption from label approval,

and distinctive liquor bottle approvals. The denial and revocation

regulations are new, whereas the issuance regulations merely

amend current regulations. The new regulations also codify procedures

for administratively appealing the denial or revocation of certificates

of label approval, exemptions from label approval, or distinctive

liquor bottle approvals.

 

DATES: These regulations are effective March 15, 1999.

 

ADDRESSES: Copies of the proposed regulation and written

comments are available for public inspection during normal business

hours at: ATF Reading Room, Office of Public Affairs and Disclosure,

Room 6480, 650 Massachusetts Avenue, NW, Washington, DC.

 

FOR FURTHER INFORMATION CONTACT: Edward A. Reisman, Jr., Alcohol
Labeling and Formulation Branch, Bureau of Alcohol, Tobacco and Firearms,
650 Massachusetts Avenue, NW, Washington, DC 20226 (202-927-8140).

 

SUPPLEMENTARY INFORMATION:

 

Background

 

The Federal Alcohol Administration (FAA) Act, 27 U.S.C. § 205(e),

provides ATF, as the delegate of the Secretary of the Treasury,

with authority to promulgate regulations with respect to the

bottling, packaging, and labeling of distilled spirits, wine,

and malt beverages in order to prohibit deception of the consumer,

and provide the consumer with adequate information as to the

identity and quality of the product.

In order to carry out such requirements, domestic bottlers

and producers are prohibited from bottling distilled spirits,

wines, or malt beverages, and importers are prohibited from removing

bottled distilled spirits, wines, or malt beverages from customs

custody unless they have in their possession a certificate of

label approval covering such products, "issued by the Secretary

in such manner and form as he shall by regulations prescribe."

27 U.S.C. § 205(e). The law provides an exemption from

these requirements for products that are not to be sold, offered

for sale, or shipped or delivered for shipment, or otherwise

introduced, in interstate or foreign commerce.

The regulations implementing these statutory provisions provide

that no person shall bottle or pack wine, distilled spirits,

or malt beverages unless application is made to the Director

and an approved certificate of label approval, ATF Form

5100.31, is issued. 27 CFR §§ 4.50(a), 5.55(a), and

7.41. The regulations also provide that no bottled wines, distilled

spirits, or malt beverages shall be released from customs custody

for consumption unless an approved certificate of label approval,

ATF Form 5100.31, is deposited with the appropriate customs officer

at the port of entry. 27 CFR §§ 4.40(a), 5.51(a), and

7.31(a).

A bottler of wine or distilled spirits who can show to the

satisfaction of the Director that the product is not to be sold,

offered for sale, or shipped or delivered for shipment or otherwise

introduced in interstate or foreign commerce, must make application

for exemption from the labeling requirements of the FAA Act on

ATF Form 5100.31 in accordance with the instructions on

the form. If the application is approved, a certificate of exemption

from label approval will be issued on the same form. 27 CFR §§ 4.50(b)

and 5.55(b). Certificates of exemption from label approval are

not issued for malt beverages.

Finally, the ATF Form 5100.31 is also used to obtain approval

for distinctive liquor bottles, pursuant to the regulations appearing

at 27 CFR § 19.633(a). ATF's authority to regulate liquor

bottles is derived from section 5301 of the Internal Revenue

Code of 1986, 26 U.S.C. § 5301. However, the approval of

a distinctive liquor bottle also includes the approval of the

label on that bottle, pursuant to the FAA Act.

 

Revocation of COLAs

 

ATF reviews approximately 60,000 applications for certificates

of label approval, exemptions from label approval, and distinctive

liquor bottle approvals every year. Because errors occasionally

occur in the approval process, there is a need for some type

of revocation procedure.

Since the enactment of the FAA Act in 1935, ATF and its predecessor

agencies have taken the position that the statutory authority

to issue certificates of label approval includes the implied

statutory authority to cancel or revoke the certificates if they

were approved in error. However, there have never been formal

procedures in the regulations for denial or revocation of certificates

of label approval. Instead, ATF has utilized informal procedures

for denials and revocations, where applicants or certificate

holders who wished to contest a denial or revocation are given

an opportunity to do so in writing, or through informal meetings

with Bureau officials.

The certificate of label approval was never intended to convey

any type of proprietary interest to the certificate holder. On

the contrary, Paragraph 1 of Form 5100.31 provides that

"This certificate is issued for ATF use only. This certificate

does not constitute trademark protection." Paragraph 2 of

this form reminds applicants that the "certificate does

not relieve any person from liability for violations of the Federal

Alcohol Administration Act." The certificate of label approval

is a statutorily mandated tool used to help ATF in its enforcement

of the labeling requirements of the FAA Act.

ATF's informal procedures for revocation of COLAs were subject

to challenge in the Federal District Court for the Northern District

of California. In Cabo Distributing Co. v. Brady, 821

F. Supp. 601 (N.D. Cal. 1992), the court set aside ATF's revocation

of labels for "Black Death" vodka on several grounds.

The court held that there was no express statutory or regulatory

authority for the Bureau to cancel certificates of label approval,

and that the Bureau had implied authority to reverse its actions

only in limited circumstances. The court thus concluded that

"[w]ithout statutory authority or regulatory authority,

the BATF cannot cancel a certificate of label approval."

821 F. Supp. at 612. The court also held that the Bureau's informal

procedures for revoking the "Black Death" certificates

of label approval had not afforded the certificate holders their

constitutional right to procedural due process. 821 F. Supp.

at 612.

ATF does not agree with the court's decision on either of

these two holdings. ATF believes that a right to cancel certificates

of label approval is implied from the authority granted by the

statute to the Secretary to issue certificates of label approval

"in such manner and form as he shall by regulations prescribe..."

The statute explicitly authorizes ATF, as a delegate of the Secretary,

to issue regulations governing the procedure for the issuance

of certificates of label approval. There is also implicit statutory

authority to issue regulations governing the procedures for denying

and revoking certificates of label approval.

Furthermore, ATF believes that the procedures that it has

been using for revoking certificates of label approval, although

not codified in the regulations, have provided certificate holders

with due process of law. However, ATF determined that rulemaking

was appropriate in order to clarify its authority and procedures

for revocation of label approvals.

 

Notice of Proposed Rulemaking

 

On September 13, 1995, ATF published a notice of proposed

rulemaking (Notice No. 815, 60 FR 47506-47512)

to solicit public comment on regulations setting forth procedures

for the issuance, denial, and revocation of certificates of label

approval, certificates of exemption from label approval, and

distinctive liquor bottle approvals. The comment period closed

on December 12, 1995, and was reopened until February 21, 1996,

by notice dated January 22, 1996 (Notice No. 819, 61 FR

1545-1546).

Notice No. 815 proposed to make existing regulations covering

issuance of certificates of label approval, certificates of exemption

from label approval, and distinctive liquor bottle approvals

more specific and proposed new regulations to codify existing

informal procedures for denial of applications and revocation

of certificates. The notice also proposed the codification of

procedures for administratively appealing the denial or revocation

of certificates of label approval, exemptions from label approval,

and distinctive liquor bottle approvals. In the notice, ATF restated

its position that the proposed regulations would afford applicants

and certificate holders due process of law, and that the codification

of these procedures in the regulations would eliminate any question

as to ATF's authority to revoke certificates of label approval,

exemptions from label approval, and distinctive liquor bottle

approvals.

Under current regulations, the authority to approve certificates of label
approval, exemptions from label approval, and distinctive liquor bottle
applications rests with the Director and has been delegated to the labeling
specialists in the Alcohol Labeling and Formulation Branch. The proposed
regulations described the process of approval, denial, and administrative
appeal in a new Part 13. Proposed revisions to Parts 4, 5, 7, and
19 added cross-references to the new Part 13.

With respect to revocations of certificates of label approval,

certificates of exemption from label approval, or distinctive

liquor bottle approvals, and administrative appeals of such actions,

the proposed regulations set forth a procedure based on ATF’s

informal practices.

In response to Notice 815, ATF received comments from the

following organizations:

Government Liaison Services, Inc.;

Presidents' Forum of the Beverage Alcohol Industry (Presidents’

Forum);

American Brandy Association (ABA);

Wine Institute;

Fédération Internationale des Vins et Spiriteux

(FIVS);

Fédération des Exportateurs de Vins & Spiriteux

de France (FEVS);

National Association of Beverage Importers, Inc. (NABI). Five

importers, Remy Amerique, Inc., Austin Nichols & Co, Inc.,

Dribeck Importers, Inc., Guinness Import Company, Kobrand Corporation,

and two associations, The Scotch Whisky Association and the Associación

de Criadores Exportadores de Sherry, wrote to endorse the comments

of NABI;

The Distilled Spirits Council of the U.S. (DISCUS). Jim Beam

Brands Co., a distiller, wrote to express agreement with the

DISCUS comments;

Beer Institute filed comments on behalf of its senior members:

The Anheuser Busch Companies, Miller Brewing Company, Coors Brewing

Company, Stroh Brewery Company, and G. Heileman Brewing Company;

Ropes & Gray filed comments on behalf of the Institut

Nationale des Appellations d'Origine (INAO) of France, an entity

responsible for protecting French appellations of origin;

The U.S. Department of Commerce transmitted comments from

the European Commission (EC); and

The Embassy of Mexico Trade Office forwarded comments from

Mexico's Dirección General De Normas concerning labeling

of tequila and mezcal. This last comment suggests regulatory

changes that are beyond the scope of Notice Number 815, but may

be considered as part of a future rulemaking.

 

Analysis of Comments

 

The majority of the commenters expressed support for ATF’s

effort to promulgate regulations covering issuance, denial, and

revocation of certificates of label approval, certificates of

exemption from label approval, and distinctive liquor bottle

approvals, though most had comments on specific proposals.

 

Proposals and Comments on Application, Approval and Denial

 

In Notice No. 815, ATF set forth proposed regulations describing

in detail the steps in applying for a certificate of label approval,

certificate of exemption from label approval, or distinctive

liquor bottle approval, including issuance of approved certificates,

denial of applications, and appeal of such denials. A number

of comments addressed specific items in these proposed regulations.

In its comment, Government Liaison Services, Inc. expressed

concern at the use of the word "send" in proposed § 13.11,

which they interpreted to preclude hand delivery of applications

for label approval. A clarifying change is made to this section,

now designated as § 13.21. ATF did not intend to prohibit

hand-delivered applications.

In the proposed rule, ATF described the approval process, including the
noting of any qualifications to the approval in the appropriate space
on the form. The proposed rule further provided that if an application
is denied for any reason, the applicant is sent an ATF Form 5190.1, "ATF
F 5100.31 Correction Sheet," with the reasons for the denial briefly
noted on the form. The proposed regulations afforded the applicant an
opportunity to file an administrative appeal of the denial of an application
for a certificate of label approval, certificate of exemption from label
approval, or distinctive liquor bottle approval, with the Chief, Labeling
Section, Alcohol Labeling and Formulation Branch, who would make a final
decision on the denial of the application.

Government Liaison Services, Inc., the Presidents’ Forum,

NABI and DISCUS all commented that the initial correction notice

and informal discussion of technical issues arising from the

application that often occurs between applicants and ATF representatives

should be kept separate from a formal appeal process. DISCUS,

in its comment, noted "these informal consultations and

contacts have served and do serve the interests of all parties,

with commensurate savings in expenditures and manpower for both

the government and the industry."

In practice, applicants and ATF representatives often informally resolve
issues related to a qualified approval or a denied application. ATF does
not wish to create the impression that all qualifications or denials must
be formally appealed. Accordingly, we have added a new subsection § 13.25(b)
to confirm that the applicant has the option of pursuing informal resolution
of a labeling issue by requesting an informal conference with the Alcohol
Labeling and Formulation Branch Specialist or the Chief, Alcohol Labeling
and Formulation Branch.

Government Liaison Services, Inc. also noted that the proposed

regulations did not incorporate ATF's practice of allowing voluntary

withdrawal of applications. A new § 13.22 has been

added to cover withdrawal of applications.

Beer Institute, DISCUS and Government Liaison Services, Inc. questioned
ATF’s proposal to authorize the Chief of the Labeling Section to
make final decisions on appeals of denials of applications for certificates
of label approvals, exemptions from label approvals and distinctive liquor
bottles. They suggested review by either a higher level official within
the Alcohol and Tobacco Programs Division or by someone outside the Division.
Pursuant to these comments, a second level of appeal has been added in
§ 13.27 for qualifications or denials of applications for label
approval. The final rule provides that the first appeal will be decided
by the Chief, Alcohol Labeling and Formulation Branch, and the second
appeal will be decided by the Chief, Alcohol and Tobacco Programs Division.

 

Appeal of qualifications

 

The final rule expands the formal and informal resolution

and appeal procedures for denials to include resolution of disagreements

concerning qualifications on approved certificates. For these

purposes, a qualification is treated like a partial denial, since

it limits the use of the COLA.

 

Comments on Revocation and Appeal

 

With respect to revocations of certificates of label approval,

certificates of exemption from label approval, or distinctive

liquor bottle approvals, the proposed regulations divided revocations

into two categories, revocation of specific labels and revocation

by operation of law or regulation. The two types of revocation

will be discussed separately in this background material.

The proposed regulations on revocation of specific approvals gave the Chief,
Alcohol Labeling and Formulation Branch, authority to issue a notice of
proposed revocation and gave the certificate holder 45 days to present
written arguments as to why the revocation should not occur. In the proposed
rule, the Chief, Alcohol Labeling and Formulation Branch, was authorized
to decide whether to revoke the certificate. If a label or distinctive
liquor bottle approval were revoked, the certificate holder would have
45 days to file a written appeal with the Chief, Alcohol and Tobacco
Programs Division. In the proposed rule, the decision of the Chief, Alcohol
and Tobacco Programs Division, was the final decision of the Bureau.

 

ATF’s Authority to Revoke Label Approvals

 

Most commenters who addressed the issue agreed that ATF had

authority to revoke certificates of label approval, although

there was disagreement on the circumstances where revocation

would be appropriate. DISCUS argued, however, that in the absence

of a specific statutory provision authorizing revocations of

approved labels, ATF lacked authority to take such actions.

ATF does not agree that it lacks statutory authority to revoke

certificates of label approval. Many courts have recognized "an

implied authority in other agencies to reconsider and rectify

errors even though the applicable statute and regulations do

not expressly provide for such reconsideration." Gun

South, Inc. v. Brady, 877 F.2d 858, 862 (11th Cir. 1989).

For example, in concluding that the Interstate Commerce Commission

could order a refund to correct a prior error, the Supreme Court

stated that "[a]n agency, like a court, can undo what is

wrongfully done by virtue of its order." United Gas Improvement

Co. v. Callery Properties, 382 U.S. 223, 229 (1965). See

also Kudla v. Modde, 537 F. Supp. 87, 89 (E.D.

Mich. 1982) ("[t]he power of the state to require a license

implies the power of the state to revoke a license which has

been improperly issued."), aff'd without opinion,

711 F.2d 1057 (6th Cir. 1983); Century Arms, Inc. v. Kennedy,

323 F. Supp. 1002, 1016-17 (D. Vt. 1971), ("we are aware

of no licenses which once granted, can never be taken away."),

aff'd, 449 F.2d 1306 (2d Cir. 1971), cert. denied,

405 U.S. 1065 (1972).

As we explained in the notice, it is ATF's position that its

statutory authority to issue regulations governing the issuance

of COLAs also includes the implied authority to issue regulations

setting forth procedures for the denial and revocation of such

COLAs. The single comment opposed to this position did not provide

a persuasive basis for concluding otherwise.

 

Due Process Issues

 

The American Brandy Association (ABA), Beer Institute, Wine

Institute, NABI and DISCUS submitted comments suggesting that

ATF’s approval of a certificate of label approval (COLA)

does create a property right subject to the protection of due

process of law.

ATF has always maintained that its informal procedures concerning

the denial and revocation of COLAs were sufficient to provide

procedural due process to the applicant or certificate holder.

Procedural due process imposes constraints on governmental decisions

which deprive individuals of "liberty" or "property"

interests within the meaning of the Due Process Clause of the

Fifth Amendment. The Supreme Court has recognized that "due

process is flexible and calls for such procedural protections

as the particular situation demands." Morrissey v. Brewer,

408 U.S. 471, 481 (1972).

In determining whether an administrative procedure accords

due process, three factors are considered:

    First, the private interest that will be affected by the official

    action; second, the risk of an erroneous deprivation of such

    interest through the procedures used, and the probable value,

    if any, of additional or substitute procedural safeguards; and

    finally, the Government's interest, including the function involved

    and the fiscal and administrative burdens that the additional

    or substitute procedural requirement would entail.

Mathews v. Eldridge, 424 U.S. 319, 334 (1976).

ATF recognizes that brand names and other terms on labels

may be significant elements in the marketing of an alcohol beverage.

However, even assuming that a certificate represents a property

interest, we believe that the procedures set forth in the final

rule minimize the risk of an erroneous deprivation of the interest

of the industry member. The procedures adopted in the final rule

ensure that certificate holders are given prior written notice

of a proposed revocation; the opportunity to meet with agency

officials to discuss the issues; and the opportunity to present

written arguments or evidence before the agency takes final action

to revoke a label.

There have been suggestions that an evidentiary hearing, complete

with an Administrative Law Judge and the right to cross-examine

witnesses, is the appropriate model for a revocation proceeding.

However, none of the commenters explained why a written review

procedure involved a risk of erroneous deprivation of the certificate

holder's property interests, or why an evidentiary hearing would

shed further light on the issue of whether a label is in compliance

with the regulations. See Doolin Sec. Sav. Bank v.

FDIC, 53 F.3d 1395, 1403 (4th Cir. 1995), cert. denied

516 U.S. 973 (1995) (finding that an agency was not required

to provide an evidentiary hearing where the plaintiff did not

"offer sufficient evidence demonstrating that an oral hearing

would allow it to present evidence . . . that it could not present

in the written review procedure" and the "determination

did not involve credibility assessments, which would benefit

from an oral hearing with the presentation of witnesses").

Thus, the comments provided no basis for concluding that the

additional procedural safeguards provided by an evidentiary hearing

would be of value. However, such hearings would certainly impose

additional administrative burdens on the agency. After evaluating

the factors set forth in Mathews v. Eldridge, it is clear

that due process does not require a formal evidentiary hearing

before the agency revokes a certificate of label approval. As

the Supreme Court noted in that case, "the judicial model

of an evidentiary hearing is neither a required, nor even the

most effective, method of decisionmaking in all circumstances."

424 U.S. at 348. This is especially true where, as here, judicial

review of the final agency determination is available in the

United States District Court pursuant to the Administrative Procedure

Act (APA). See 27 U.S.C. § 205(e); 5 U.S.C. §

702. See also Doolin, 53 F.3d at 1405 ("This

opportunity for judicial review of FDIC reclassification determinations

therefore supports our conclusion that the FDIC's risk classification

review procedures satisfy due process"). Accordingly, the

final rule does not provide for evidentiary hearings in connection

with the revocation of certificates.

 

Level of Appeal

 

Some commenters suggested that the impact of a revocation

on the industry member warrants review at a higher level than

the ATF officials designated in the proposed rule. A number of

commenters, including Beer Institute, suggested that the officials

designated in the proposed rule to hear appeals are in day-to-day

contact with the persons making the initial decisions and may

even have participated in making those initial decisions. As

previously noted, some commenters even suggested that appeals

of revocations should be heard by an Administrative Law Judge.

The APA, 5 U.S.C. § 554, generally requires that an independent

hearing officer preside at formal adjudicatory hearings "in

every case of adjudication required by statute to be determined

on the record after opportunity for an agency hearing."

Section 554 also requires the separation of investigatory and

decisionmaking functions for this type of formal adjudication.

The Federal Alcohol Administration Act does not provide that

proceedings regarding labels must be "determined on the

record after opportunity for an agency hearing." Accordingly,

proceedings regarding the approval or denial of a label do not

constitute formal adjudicatory proceedings under the APA. See

Joseph E. Seagram & Sons, Inc. v. Dillon, 344 F.2d

497 (D.C. Cir. 1965). Similarly, there is no statutory requirement

that appeals of denials or revocations be determined on the record

after opportunity for an agency hearing. Since these proceedings

are not formal adjudications, there is no legal requirement that

such appeals be heard by an independent hearing officer or Administrative

Law Judge.

Nonetheless, ATF recognizes that many industry members believe that fairness
dictates that appeals should be heard at a high enough level to ensure
some division between the initiation of revocation proceedings and the
final appeal. In response to these comments, we have revised the final
rule to designate higher level officials to make revocation decisions
and hear appeals. The Chief, Alcohol Labeling and Formulation Branch,
will issue a notice of proposed revocation, but the decision whether or
not to revoke a certificate will be made by the Chief, Alcohol and Tobacco
Programs Division. Any appeal of such a revocation will be decided by
the Assistant Director, Alcohol and Tobacco.

 

Time Limits for Initiating Revocation Proceedings

 

As noted above, many commenters suggested limitations on ATF's

authority to rescind label approvals. Several commenters suggested

setting a time within which ATF must begin revocation proceedings.

For example, Beer Institute suggested a 30-day period during

which ATF could revoke labels to correct agency administrative

errors without a formal administrative hearing, and then "an

outer limit of one year" on any other revocation. Wine Institute

suggested that any time limit (they suggested five years) should

be measured from "relatively wide and bona fide distribution"

of a product, rather than from approval of a label.

It has been ATF’s experience that in some cases, errors

in the label approval process are not detected right away. For

example, a label may be approved for a product that is not placed

on the market for some time. ATF believes that the placement

of an artificial time constraint on its ability to take revocation

action would not further the statutory purpose of protecting

the consumer from misleading labels. Accordingly, the final rule

does not set forth such a time limit.

 

Standard of Proof for Revocation

 

The American Brandy Association and DISCUS suggested that

the standard for revocation should be based on "clear and

convincing evidence" that a label is not in compliance with

law or regulations. However, the comment did not provide a legal

basis for imposing such a standard.

Under the APA, an agency action (including an informal adjudication

such as a denial or revocation of a certificate) shall be set

aside by a reviewing court if it is arbitrary, capricious, an

abuse of discretion, or otherwise not in accordance with law.

5 U.S.C. § 706(2)(A). Even an agency's action in a formal

adjudicatory proceeding (which this is not) will be set aside

by a reviewing court only if it is "unsupported by substantial

evidence." 5 U.S.C. § 706(2)(E). There is

no requirement that an agency establish "clear and convincing

evidence" to justify its actions.

The standard of review set forth in the APA provides sufficient

protection to applicants and certificate holders wishing to contest

agency actions. Accordingly, this comment was not adopted.

 

Judicial Review

 

ATF is modifying the final rule to clarify that the administrative

remedies available within ATF must be exhausted prior to application

to the Federal courts for review. Accordingly, sections 13.26,

13.27 and 13.44 are amended to reflect this requirement.

 

Effect of Revocation

 

There were several comments and questions concerning the effect

of revocation of a certificate. In response, we have added a

new § 13.73 to clarify this issue. Section 13.73 provides

that, as of the effective date of the revocation, a revoked certificate

may not be used to bottle or pack distilled spirits, wine or

malt beverages; to remove such products from the place where

they were bottled or packed; or to remove such products from

customs custody for consumption.

 

Use-Up Period

 

A number of commenters suggested a longer "use-up"

period for revoked labels. We have revised the section covering

this issue, now designated as § 13.72, to allow 60 days

from the date of the initial revocation of the certificate. Some

commenters also did not understand that the proposed regulations

provided that a timely appeal would stay the effective date of

a revocation of a certificate (other than a revocation by operation

of law or regulations). Accordingly, § 13.72 now incorporates

the material on the effect of an appeal on the date of revocation,

which was originally proposed in § 13.50(b).

 

Revocations by Operation of Law or Regulation

 

With respect to revocations by operation of law or regulation,

the proposed rule did not require ATF to issue a notice of proposed

revocation prior to notifying a certificate holder of the revocation

of a certificate of label approval, certificate of exemption

from label approval, or distinctive liquor bottle approval. The

proposed rule stated that in these cases, the burden of ensuring

that affected labels were in compliance with the new requirements

imposed by statute or regulation was on the certificate holder,

not ATF.

The proposed rule provided that if ATF determined that a label

or bottle which was not in compliance with the new statutory

or regulatory requirements was still being used, the Chief, Alcohol Labeling and Formulation Branch, would issue a letter notifying the certificate

holder that the certificate had been revoked by operation of

law or regulation. If the certificate holder wished to challenge

the application of the law or regulation to the particular label

or bottle, the holder would appeal the decision, in writing,

to the Chief, Alcohol and Tobacco Programs Division.

In its comment, DISCUS expressed its opinion that ATF should

individually notify holders whose labels are revoked by operation

of law, that ATF should never require submission of new COLAs

to show compliance with any new requirement in the law, and further

expressed the opinion that COLAs may not be revoked by operation

of regulation. ATF is not adopting any of these comments.

In the first instance, affected certificate holders will likely

receive notice of a proposed or final change in regulations by

the publication of such notice or regulation in the Federal

Register. Changes in law usually will be accompanied by changes

in regulations. Amendments to both the law and regulations affecting

industry members will be published in the ATF Quarterly Bulletin.

Thus, there can be no argument that industry members do not receive

notice of such changes. In those instances, ATF believes the

responsibility for learning about the changes in the law and

regulations and making appropriate changes to labels properly

rests with the certificate holders.

Second, ATF reserves the right to decide, based on the facts

and circumstances of each change in regulations, whether to require

certificate holders to file new applications to show compliance

with new requirements or to excuse holders of approved certificates

from filing new applications, so long as labels are modified

appropriately.

Finally, on the issue of ATF's authority to revoke labels

by operation of regulations, we believe this is part of our general

authority to promulgate regulations and to revoke labels, which

was discussed earlier in this preamble. Changes in the labeling

regulations usually affect all future labeling activities, regardless

of when a certificate of label approval was originally issued

for a particular label. Such changes to the regulations will

usually set forth specifically whether existing certificates

of label approval must be surrendered, and new certificates obtained.

In the event that an individual change to the labeling regulations

is accompanied by a "grandfathering" provision for

previously approved certificates of label approval, the regulation

will so provide.

 

Time Limits for Appeals

 

Several commenters, including Beer Institute, DISCUS, FEVS

and NABI, asked ATF to set a time limit for its own actions in

response to appeals. DISCUS, in its comment, suggested that "[c]onsistent

with the tenet of administrative efficiency, we believe that

it is appropriate that the Bureau be required to issue its written

decision concerning a COLA denial within 15 days from the receipt

of the applicant's appeal of the denial." DISCUS made similar

recommendations with respect to deadlines for ATF action on decisions

after a COLA holder disputes a notice of proposed revocation

and appeals a revocation. Beer Institute made the following suggestion:

"... we propose that ATF adopt a 45-day period to render

decisions on appeals of denials of COLA applications." With

respect to revocations, they recommend that decisions "be

made within 30 days" after a formal appeal by the holder

of the COLA.

Pursuant to the comments received on this issue, ATF has added

a time limit provision to each of the regulatory sections covering

initial approvals, appeals of denials of certificates, decisions

whether or not to revoke a certificate, and appeals of revocations.

ATF does not believe that the time periods suggested by the comments

provide sufficient time for the unusual labeling cases that may

require extensive agency review. Accordingly, the final rule

provides that ATF must generally act within 90 days of receiving

an application or appeal. However, the regulations provide that,

if an applicant or certificate holder requests an informal conference

as part of an appeal, as authorized in § 13.71, the

90-day period will begin 10 days after the date of the conference

to allow for consideration of any written arguments, facts or

evidence submitted after the conference. Further, ATF may exercise

an option to extend this period one time for an additional 90

days, based on unusual circumstances.

It should be emphasized that ATF’s current customer service

standards call for action on initial label applications within

9 calendar days; the allowance of 90 days in the regulations

does not reflect any intention to lengthen the average period

of time for label review. Instead, the regulation merely places

an outside limit on the unusual labeling cases that may require

additional fact-finding, consultation with other agencies, or

extensive review within the agency. A new § 13.75 has

been added to clarify the beginning date of this time limit.

 

Formal Third-Party Involvement in the Label Process

 

The INAO comment suggested that ATF should recognize the rights

of third parties with respect to certificates of label approval.

One example given by the INAO was where "a label may contain

a brand, fanciful name, class, type or other designation that

is identical or substantially similar to a term, such as an appellation

of origin, which is protected under U.S. treaties, agreements,

laws or regulations." The INAO suggested that in such a

case, ATF should implement procedures to ensure that the country

of origin was contacted regarding the use of the term on the

label.

In appropriate situations, ATF will contact the country of

origin for more information regarding whether the use of a labeling

term would violate the laws of that country. Accordingly, ATF

does not believe it is necessary to codify such procedures in

the regulations.

The INAO also suggested that ATF should implement a system

to publish approved labels, perhaps similar to the Official

Gazette of the Patent and Trademark Office. Their comment

suggested that such a procedure would enable concerned third

parties to receive timely notice of approved labels, and, in

the case of an erroneous approval, will enable the third party

to bring the error to ATF’s attention promptly.

Certificates of label approval or exemption from label approval,

and approvals of distinctive containers, become public information

upon approval, and can be viewed at the ATF Library or requested

by mail under the Freedom of Information Act. ATF is also working

to make these public records more readily available through electronic

means. We hope to make the approved label database available

on the Internet in the next year or two; we believe that this

will provide affected third parties ample opportunity to inspect

approved labels. Thus, we do not see a need for publishing approved

labels on a regular basis.

However, in response to this comment, the final regulations

contain a new section 13.61, which codifies ATF’s policy

concerning publicity of information contained in applications

for certificates of label approval, certificates of exemption

from label approval, and distinctive liquor bottle approvals,

and the resulting approvals or administrative actions. The regulations

also codify ATF’s longstanding policy that pending and denied

applications for label approval are treated as proprietary information

and are not released to the public without the consent of the

submitter.

The INAO and FEVS requested ATF to consider new procedures

that would allow third parties to intervene in proceedings concerning

the denial or revocation of a label. The INAO suggested that

if a proposed revocation of such a label were appealed by the

certificate holder, the third party should have an opportunity

during the appeal process to submit material in support of revocation.

The INAO correctly noted that ATF currently reviews complaints

concerning approved labels where a third party believes that

the label is in violation of the regulations. However, the INAO

suggested that this policy be codified, so that the public would

be aware of its existence. We concur with the suggestion to codify

ATF’s policy and informal practice concerning review of

third party complaints, and accordingly have added a new § 13.62

to the final rule. However, the regulation does not provide for

any formal role for third parties during a revocation proceeding.

ATF believes that it may be appropriate in certain cases to seek

the opinions of third parties regarding whether a particular

label is misleading to consumers; however, we believe that this

is best determined on a case-by-case basis.

 

Service of Notices

 

In proposed § 13.55, ATF stated that notices of

denial, proposed revocation and revocation will be served by

first class mail or by personal delivery. NABI and several other

commenters stated that service by mail should be by registered

mail, return receipt requested. This section has been renumbered

as § 13.76 in the final rule and modified to require

proof of service of notices of proposed revocation or revocation,

either a postal return receipt or equivalent written acknowledgment

obtained from the addressee by a commercial delivery service

or a report of hand delivery by an ATF official. The final rule

does not require proof of service for notices of denial of applications,

since applicants may not use a label until an approved certificate

is received.

 

Informal Conferences

 

In proposed § 13.40(a), ATF reserved the right to

decide whether to grant an informal conference to discuss a denial

or revocation of a certificate. Several commenters suggested

that such a conference should be granted as a matter of right,

and cited 27 CFR § 70.418, which states that any

person may have a conference concerning "any matter arising

in connection with such person’s operations" upon request.

In the final rule, the paragraph, now designated as § 13.71,

is revised to show that a conference will be granted upon request.

Proposed paragraph (b) of that section stated that no transcript

would be made of a conference, if one was held, and that any

arguments, facts or evidence on which an applicant or certificate

holder wishes to rely, should be incorporated in a written submission.

A number of commenters expressed the opinion that there should

be a formal record made of such a conference. ATF disagrees.

As noted above, proceedings regarding label approvals are not

required by statute to be conducted on the record after an agency

hearing; accordingly this is not a formal adjudicatory proceeding.

The regulations clarify that the conference is an informal means

of clarifying issues or discussing alternative solutions, not

an administrative hearing. The written submission of the applicant

or certificate holder and the written response of ATF will form

the official administrative record of such proceedings.

 

Comments Regarding Imported Products

 

The EC commented that "establishing a mandatory procedure

concerning certificates of label approval .... would appear to

be disproportionate to the pursued objective" [of preventing

consumer deception]. The EC said further that they "would,

therefore, deem this regulation as having the effect of creating

unnecessary obstacles to European exports unless the US authorities

can show that this proposal is not more trade-restrictive than

necessary to fulfil the pursued objective and explain the justification

for this technical rule in terms of these Articles...."

[Article 2.2 and Article 5.1.2 in connection with Article 2.5

of the Agreement on Technical Barriers to Trade].

The final regulations do not create any unnecessary obstacles

to European exports to the United States; on the contrary, the

regulations will provide all applicants and certificate holders

with more detailed and specific information about the label approval

process. The regulations also set forth specific avenues of appeal

for applicants and certificate holders. Domestic and imported

products are treated with parity under both the proposed and

final regulations. Accordingly, ATF does not agree that the regulations

create unnecessary obstacles to imported products.

In its comment, FEVS asked that ATF ensure equal treatment

of domestic and foreign goods in the final rule, but did not

identify any specific changes to be made. As noted above, ATF

is not aware of any provision in the proposed rule or this final

rule that treats domestic and imported products differently.

NABI noted that importers of beer are subject to suspension

or revocation of their basic permits for FAA Act violations,

including labeling violations, while domestic brewers are not

required to obtain a basic permit under the FAA Act. However,

this distinction flows directly from the statute and is not subject

to change through regulations. Furthermore, brewers may be subject

to other sanctions for violations of the FAA Act. Thus, no changes

were made to the final rule as a result of these comments.

 

Unrelated Labeling Issues

 

Government Liaison Services, Inc. expressed concerns about

ATF’s day-to-day handling of applications for certificates

of label approval, exemption from label approval, and distinctive

liquor bottles. They requested that ATF make changes in areas

such as training, workflow, recordkeeping, and communication

of policy decisions. Similar concerns were raised in the DISCUS

and INAO comments.

These issues are beyond the scope of this rulemaking document.

Nonetheless, ATF is committed to improving the day-to-day administration

of its label approval system. ATF is addressing these issues

through partnership meetings with the regulated industry, and

through internal restructuring efforts.

 

Regulatory Flexibility Act

 

It is hereby certified that this regulation will not have

a significant economic impact on a substantial number of small

entities. The regulation will give ATF specific regulatory authority

to issue, deny or revoke certificates of label approval, exemptions

from label approval, and distinctive liquor bottle approvals.

The regulation will not increase recordkeeping or reporting requirements.

Accordingly, a regulatory flexibility analysis is not required

because the final rule is not expected (1) to have significant

secondary or incidental effects on a substantial number of small

entities; or (2) to impose, or otherwise cause a significant

increase in the reporting, recordkeeping, or other compliance

burdens on a substantial number of small entities.

 

Executive Order 12866

 

It has been determined that this final rule is not a significant

regulatory action as defined by Executive Order 12866. Accordingly,

this rule is not subject to the analysis required by this Executive

Order.

 

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 document 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.

However, other personnel of ATF participated in developing this

document.

 

List of Subjects in

 

27 CFR Part 4

 

Advertising, Consumer protection, Customs duties and inspection,

Imports, Labeling, Packaging and containers, Wine.

 

27 CFR Part 5

 

Advertising, Consumer protection, Customs duties and inspection,

Imports, Labeling, Liquors, Packaging and containers, Reporting

and recordkeeping requirements, Trade practices.

 

27 CFR Part 7

 

Advertising, Beer, Consumer protection, Customs duties and

inspection, Imports, Labeling.

 

27 CFR Part 13

 

Administrative practice and procedure, Alcohol and alcoholic

beverages, Appeals, Applications, Certificates of label approval,

Certificates of exemption from label approval, Denials, Distinctive

liquor bottle approvals, Informal conferences, Labeling, Revocations.

 

27 CFR Part 19

 

Administrative practice and procedure, Alcohol and alcoholic

beverages, Authority delegations, Claims, Chemicals, Customs

duties and inspection, Electronic fund transfers, Excise taxes,

Exports, Gasohol, Imports, Labeling, Liquors, Packaging and containers,

Puerto Rico, Reporting and recordkeeping requirements, Research,

Security measures, Spices and flavorings, Surety bonds, Transportation,

Virgin Islands, Warehouses, Wine.

 

Authority and Issuance

 

Chapter I of Title 27, Code of Federal Regulations, is amended

as follows:

 

PART 4--LABELING AND ADVERTISING OF WINE [AMENDED]

 

Paragraph 1. The authority citation for Part 4 continues

to read as follows:

Authority: 27 U.S.C. 205, unless otherwise noted.

 

Par. 2. Section 4.40 is amended to add paragraph (d)

to read as follows:

 

§ 4.40 Label approval and release.

 

* * * * *

 

(d) Cross reference. For procedures regarding the issuance,

denial, and revocation of certificates of label approval, as

well as appeal procedures, see Part 13 of this chapter.

Par. 3. Section 4.50 is amended to add paragraph (c)

to read as follows:

 

§ 4.50 Certificates of label approval.

 

* * * * *

 

(c) Cross reference. For procedures regarding the issuance,

denial, and revocation of certificates of label approval, and

certificates of exemption from label approval, as well as appeal

procedures, see Part 13 of this chapter.

 

PART 5--LABELING AND ADVERTISING OF DISTILLED SPIRITS [AMENDED]

 

Par. 4. The authority citation for Part 5 continues

to read as follows:

 

Authority: 26 U.S.C. 5301, 7805, 27 U.S.C. 205.

 

Par. 5. Section 5.46 is amended to revise paragraph

(d) to read as follows:

 

§ 5.46 Standard liquor bottles.

 

* * * * *

 

(d) Exceptions. (1) Distinctive Liquor Bottles.

The headspace and design requirements in paragraphs (b) and (c)

of this section do not apply to liquor bottles that are specifically

exempted by the Director, pursuant to an application filed by

the bottler or importer.

(2) Cross reference. For procedures regarding the issuance,

denial and revocation of distinctive liquor bottle approvals,

as well as appeal procedures, see Part 13 of this chapter.

Par. 6. Section 5.51 is amended to add paragraph (e) to read

as follows:

 

§ 5.51 Label approval and release.

 

 

* * * * *

 

(e) Cross reference. For procedures regarding the issuance,

denial, and revocation of certificates of label approval, as

well as appeal procedures, see Part 13 of this chapter.

Par. 7. Section 5.55 is amended to add paragraph (d) to read

as follows:

 

§ 5.55 Certificates of label approval.

 

* * * * *

 

(d) Cross reference. For procedures regarding the issuance,

denial, and revocation of certificates of label approval and

certificates of exemption from label approval, as well as appeal

procedures, see Part 13 of this chapter.

 

PART 7--LABELING AND ADVERTISING OF MALT BEVERAGES [AMENDED]

 

Par. 8. The authority citation for Part 7 continues

to read as follows:

 

Authority: 27 U.S.C. 205.

 

Par. 9. Section 7.31 is amended to add paragraph (d)

to read as follows:

 

§ 7.31 Label approval and release.

 

* * * * *

 

(d) Cross reference. For procedures regarding the issuance,

denial, and revocation of certificates of label approval, as

well as appeal procedures, see Part 13 of this chapter.

 

Par. 10. Section 7.41 is revised to read as follows:

 

§ 7.41 Certificates of label approval.

 

(a) Requirement. No person shall bottle or pack malt

beverages, or remove malt beverages from the plant where bottled

or packed unless application is made to the Director, and an

approved certificate of label approval, ATF Form 5100.31, is

issued by the Director.

(b) Cross reference. For procedures regarding the issuance,

denial, and revocation of certificates of label approval, as

well as appeal procedures, see Part 13 of this chapter.

 

PART 13--LABELING PROCEEDINGS

 

Par. 11. Part 13 is added to read as follows:

 

Subpart A - Scope and Construction of Regulations

Sec.

13.1 Scope of part.

 

Subpart B - Definitions

 

13.11 Meaning of terms.

 

Subpart C - Applications

 

13.21 Application for certificate.

13.22 Withdrawal of applications.

13.23 Notice of denial.

13.25 Appeal of qualification or denial.

13.26 Decision after appeal of qualification or denial.

13.27 Second appeal of qualification or denial.

 

Subpart D - Revocations of Specific Certificates

 

13.41 Authority to revoke certificates.

13.42 Notice of proposed revocation.

13.43 Decision after notice of proposed revocation.

13.44 Appeal of revocation.

13.45 Final decision after appeal.

 

Subpart E - Revocation by Operation of Law or Regulation

 

13.51 Revocation by operation of law or regulation.

13.52 Notice of revocation.

13.53 Appeal of notice of revocation.

13.54 Decision after appeal.

 

Subpart F - Miscellaneous

 

13.61 Publicity of information.

13.62 Third-party comment on certificates.

13.71 Informal conferences.

13.72 Effective dates of revocations.

13.73 Effect of revocation.

13.74 Surrender of certificates.

13.75 Evidence of receipt by the Bureau.

13.76 Service on applicant or certificate holder.

13.81 Representation before the Bureau.

13.91 Computation of time.

13.92 Extensions.

 

Authority: 27 U.S.C. 205(e), 26 U.S.C. 5301 and 7805.

 

Subpart A - Scope and Construction of Regulations

 

§ 13.1 Scope of part.

The regulations in this part govern the procedure and practice

in connection with the issuance, denial, and revocation of certificates

of label approval, certificates of exemption from label approval,

and distinctive liquor bottle approvals under 27 U.S.C. 205(e)

and 26 U.S.C. 5301. The regulations in this part also provide

for appeal procedures when applications for label approval, exemptions

from label approval, or distinctive liquor bottle approvals are

denied, when such applications are approved with qualifications,

or when these applications are approved and then subsequently

revoked.

 

Subpart B - Definitions

 

§ 13.11 Meaning of terms.

 

Where used in this part and in forms prescribed under this

part, where not otherwise distinctly expressed or manifestly

incompatible with the intent thereof, terms shall have the meaning

ascribed in this subpart. Words in the plural form shall include

the singular, and vice versa, and words importing the masculine

gender shall include the feminine. The terms "include"

and "including" do not exclude things not enumerated

that are in the same general class.

Act. The Federal Alcohol Administration Act.

Applicant. The permittee or brewer whose name, address,

and basic permit number, or plant registry number, appears on

an unapproved ATF F 5100.31, application for a certificate

of label approval, certificate of exemption from label approval,

or distinctive liquor bottle approval.

Assistant Director, Alcohol and Tobacco. The ATF official

responsible for deciding an appeal of a revocation of a certificate

of label approval, a certificate of exemption from label approval,

or a distinctive liquor bottle approval, under this part.

ATF. The Bureau of Alcohol, Tobacco and Firearms, Department

of the Treasury, Washington, DC 20226.

Brewer. Any person who brews beer (except a person

who produces only beer exempt from tax under 26 U.S.C. 5053(e))

and any person who produces beer for sale.

Certificate holder. The permittee or brewer whose name,

address, and basic permit number, or plant registry number, appears

on an approved ATF F 5100.31, certificate of label approval,

certificate of exemption from label approval, or distinctive

liquor bottle approval.

Certificate of exemption from label approval. A certificate

issued on ATF F 5100.31 which authorizes the bottling of

wine or distilled spirits, under the condition that the product

will under no circumstances be sold, offered for sale, shipped,

delivered for shipment, or otherwise introduced by the applicant,

directly or indirectly, into interstate or foreign commerce.

Certificate of label approval. A certificate issued

on ATF F 5100.31 that authorizes the bottling or packing of wine,

distilled spirits, or malt beverages, or the removal of bottled

wine, distilled spirits, or malt beverages from customs custody

for introduction into commerce, as long as the product bears

labels identical to the labels affixed to the face of the certificate,

or labels with changes authorized by the certificate.

Chief, Alcohol and Tobacco Programs Division. The ATF

official responsible for issuing revocations of certificates

of label approval, certificates of exemption from label approval,

and distinctive liquor bottle approvals, under this part. This

official is also responsible for deciding certain appeals of

denials of applications for certificates of label approval, certificates

of exemption from label approval, and distinctive liquor bottle

approvals, under this part.

Chief, Alcohol Labeling and Formulation Branch. The ATF official

responsible for deciding first appeals of denials of applications

for certificates of label approval, certificates of exemption

from label approval, and distinctive liquor bottle approvals,

under this part. This official is also responsible for proposing

revocation of certificates of label approval, certificates of

exemption from label approval, and distinctive liquor bottle

approvals, under this part.

Director. The Director, Bureau of Alcohol, Tobacco

and Firearms, the Department of the Treasury, Washington, D.C.

Distilled spirits. Ethyl alcohol, hydrated oxide of

ethyl, spirits of wine, whisky, rum, brandy, gin, and other distilled

spirits, including all dilutions and mixtures thereof for nonindustrial

use. The term "distilled spirits" does not include

mixtures containing wine, bottled at 48 degrees of proof

or less, if the mixture contains more than 50 percent wine

on a proof gallon basis.

Distinctive liquor bottle. A liquor bottle of distinctive

shape or design.

Distinctive liquor bottle approval. Approval issued

on ATF F 5100.31 that authorizes the bottling of distilled spirits,

or the removal of bottled distilled spirits from customs custody

for introduction into commerce, as long as the bottle is identical

to the photograph affixed to the face of the form.

Interstate or foreign commerce. Commerce between any

State and any place outside that State, or commerce within any

Territory or the District of Columbia, or between points within

the same State but through any place outside that State.

Liquor bottle. A bottle made of glass or earthenware,

or of other suitable material approved by the Food and Drug Administration,

which has been designed or is intended for use as a container

for distilled spirits for sale for beverage purposes, and which

has been determined by the Director to protect the revenue adequately.

Malt beverage. A beverage made by the alcoholic fermentation

of an infusion or decoction, or combination of both, in potable

brewing water, of malted barley with hops, or their parts, or

their products, and with or without other malted cereals, and

with or without the addition of unmalted or prepared cereals,

other carbohydrates, or products prepared therefrom, and with

or without the addition of carbon dioxide, and with or without

other wholesome products suitable for human food consumption.

Permittee. Any person holding a basic permit under

the Federal Alcohol Administration Act.

Person. Any individual, partnership, joint stock company,

business trust, association, corporation, or other form of business

enterprise, including a receiver, trustee, or liquidating agent

and including an officer or employee of any agency of a State

or political subdivision thereof.

Alcohol Labeling and Formulation Branch Specialist. An ATF official

responsible for reviewing initial applications for certificates

of label approval, certificates of exemption from label approval,

and distinctive liquor bottle approvals, under this part, with

authority to issue approvals, qualified approvals, or denials

of such applications for certificates.

United States. The several States and Territories and

the District of Columbia; the term "State" includes

a Territory and the District of Columbia; and the term "Territory"

means the Commonwealth of Puerto Rico.

Use of other terms. Any other term defined in the Federal

Alcohol Administration Act and used in this part shall have the

same meaning assigned to it by the Act.

Wine. (a) Wine as defined in section 610 and section

617 of the Revenue Act of 1918 (26 U.S.C. 3036, 3044, 3045) and

(b) other alcoholic beverages not so defined, but made in the

manner of wine, including sparkling and carbonated wine, wine

made from condensed grape must, wine made from other agricultural

products than the juice of sound, ripe grapes, imitation wine,

compounds sold as wine, vermouth, cider, perry, and sake; in

each instance only if containing not less than 7 percent, and

not more than 24 percent of alcohol by volume, and if for nonindustrial

use.

 

Subpart C - Applications

 

§ 13.21 Application for certificate.

 

(a) Form of Application. An applicant for a certificate

of label approval, certificate of exemption from label approval,

or distinctive liquor bottle approval, must send or deliver signed

duplicate copies of ATF Form 5100.31, "Application For And

Certification/Exemption Of Label/Bottle Approval" to the

Alcohol Labeling and Formulation Branch, Bureau of Alcohol, Tobacco and Firearms,

Washington, DC 20226. If the application complies with applicable

laws and regulations, a certificate of label approval, certificate

of exemption from label approval, or distinctive liquor bottle

approval will be issued. If the approval is qualified in any

manner, such qualifications will be set forth in the appropriate

space on the form.

(b) Time Period for Action on Application. Within 90

days of receipt of an application, the Alcohol Labeling and Formulation Branch

must notify the applicant whether the application has been approved

or denied. The Alcohol Labeling and Formulation Branch may extend this period

of time once by an additional 90 days if it finds that unusual

circumstances require additional time to consider the issues

presented by an application. If the Alcohol Labeling and Formulation Branch

extends the period, it must notify the applicant by letter, along

with a brief explanation of the issues presented by the label.

If the applicant receives no decision from the Alcohol Labeling and Formulation Branch within the time periods set forth in this paragraph, the

applicant may file an appeal as provided in section 13.25

of this part.

 

§ 13.22 Withdrawal of applications.

 

A person who has filed an application for a certificate of

label approval, certificate of exemption from label approval,

or distinctive liquor bottle approval, may withdraw such application

at any time before ATF takes action on the application.

 

§ 13.23 Notice of denial.

 

Whenever an application for a certificate of label approval,

certificate of exemption from label approval, or distinctive

liquor bottle approval is denied, a Alcohol Labeling and Formulation Branch

Specialist must issue to the applicant a notice of denial on

ATF Form 5190.1, entitled "ATF F 5100.31 Correction Sheet,"

briefly setting forth the reasons why the label or bottle is

not in compliance with the applicable laws or regulations. The

applicant may then submit a new application for approval after

making the necessary corrections.

 

§ 13.25 Appeal of qualification or denial.

 

(a) Form of Appeal. If an applicant for a certificate

of label approval, certificate of exemption from label approval,

or distinctive liquor bottle approval wishes to appeal the qualified

approval or denial of an application, the applicant may file

a written appeal with the Chief, Alcohol Labeling and Formulation Branch, within

45 days after the date of the notice of qualification or denial.

The appeal should explain why the applicant believes that the

label or bottle is in compliance with applicable laws and regulations.

If no appeal is filed within 45 days after the date of the notice

of qualification or denial, the notice will be the final decision

of ATF.

(b) Informal Resolution. Applicants may choose to pursue

informal resolution of disagreements regarding correction sheets

or qualifications by requesting an informal conference with the

Specialist or the Chief, Alcohol Labeling and Formulation Branch. However,

formal administrative appeals must comply with the provisions

of paragraph (a) of this section.

 

§ 13.26 Decision after appeal of qualification or

denial.

 

(a) Decision. After considering any written arguments

or evidence presented by the applicant, the Chief, Alcohol Labeling and Formulation Branch, must issue a written decision to the applicant. If the

decision is that the qualified approval or denial should stand,

a copy of the application, marked "appeal denied,"

must be returned to the applicant with an explanation of the

decision and the specific laws or regulations relied upon in

qualifying or denying the application. If the decision is that

the certificate of label approval, certificate of exemption from

label approval, or distinctive liquor bottle application should

be approved without qualification, the applicant should resubmit

ATF Form 5100.31 and the certificate will be issued.

(b) Time Limits for Decision. Within 90 days of receipt

of an appeal, the Chief, Alcohol Labeling and Formulation Branch, must notify

the appellant whether the appeal has been granted or denied.

If an applicant requests an informal conference as part of an

appeal, as authorized in § 13.71, the 90-day period

will begin 10 days after the date of the conference to allow

for consideration of any written arguments, facts or evidence

submitted after the conference. The Chief, Alcohol Labeling and Formulation Branch, may extend this period of time once by an additional

90 days if he or she finds that unusual circumstances require

additional time to consider the issues presented by an appeal.

If the Chief, Alcohol Labeling and Formulation Branch, extends the period,

he or she must notify the applicant by letter, briefly explaining

the issues presented by the label. If the appellant receives

no decision from the Chief, Alcohol Labeling and Formulation Branch, within

the times periods set forth in this paragraph, the appellant

may appeal as provided in § 13.27.

(c) Judicial review. Prior to applying to the Federal

courts for review, an applicant must first exhaust his or her

administrative remedies, including the appeal rights set forth

in this section and section 13.27.

 

§ 13.27 Second appeal of qualification or denial.

 

(a) Form of Appeal. The decision of the Chief, Alcohol Labeling and Formulation Branch, may be appealed in writing to the Chief, Alcohol

and Tobacco Programs Division. If the decision is that the

qualified approval or denial was correct, a copy of the application,

marked "appeal denied," must be returned to the applicant,

with an explanation of the decision and the specific laws or

regulations relied upon in qualifying or denying the application.

If the decision is that the certificate of label approval, certificate

of exemption from label approval, or distinctive liquor bottle

application should be approved without qualification, the applicant

may resubmit ATF Form 5100.31 and the certificate will be issued.

(b) Time Limits for Decision. Within 90 days of receipt

of an appeal, the Chief, Alcohol and Tobacco Programs Division,

must notify the appellant whether the appeal has been granted

or denied. If an applicant requests an informal conference as

part of an appeal, as authorized in § 13.71, the 90-day

period will begin 10 days after the date of the conference

to allow for consideration of any written arguments, facts or

evidence submitted after the conference. The Chief, Alcohol and

Tobacco Programs Division, may extend this period of time once

by an additional 90 days if he or she finds that unusual circumstances

require additional time to consider the unique issues presented

by an appeal. If the Chief, Alcohol and Tobacco Programs Division,

extends the time period, he or she must notify the applicant

by letter, briefly explaining the issues presented by the label.

The decision of the Chief, Alcohol and Tobacco Programs Division,

shall be the final decision of ATF.

(c) Judicial review. An appeal to the Chief, Alcohol

and Tobacco Programs Division is required prior to application

to the Federal courts for review of any denial or qualification

of an application.

 

Subpart D - Revocations of Specific Certificates

 

§ 13.41 Authority to revoke certificates.

 

Certificates of label approval, certificates of exemption

from label approval, and distinctive liquor bottle approvals,

previously approved on ATF Form 5100.31, may be revoked by the

Chief, Alcohol and Tobacco Programs Division, upon a finding

that the label or bottle at issue is not in compliance with the

applicable laws or regulations.

 

§ 13.42 Notice of proposed revocation.

 

Except as provided in section 13.51, when the Chief, Alcohol Labeling and Formulation Branch, determines that a certificate of label approval,

certificate of exemption from label approval, or distinctive

liquor bottle approval has been issued for a label or bottle

that is not in compliance with the laws or regulations, he or

she must issue to the certificate holder a notice of proposed

revocation. The notice must set forth the basis for the proposed

revocation and must provide the certificate holder with 45 days

from the date of receipt of the notice to present written arguments

or evidence why the revocation should not occur.

 

§ 13.43 Decision after notice of proposed revocation.

 

(a) Decision. After considering any written arguments

or evidence presented by the certificate holder, the Chief, Alcohol

and Tobacco Programs Division, must issue a decision. If the

decision is to revoke the certificate, a letter must be sent

to the holder explaining the revocation of the certificate, and

the specific laws or regulations relied upon in determining that

the label or bottle was not in conformance with law or regulations.

If the decision is to withdraw the proposed revocation, a letter

of explanation must be sent.

(b) Time Limits for Decision. Within 90 days of receipt

of written arguments or evidence from the certificate holder,

the Chief, Alcohol and Tobacco Programs Division, shall notify

the appellant of his or her decision. If a certificate holder

requests an informal conference as part of an appeal, as authorized

in § 13.71, the 90-day period will begin 10 days

after the date of the conference to allow for consideration of

any written arguments, facts or evidence submitted after the

conference. The Chief, Alcohol and Tobacco Programs Division,

may extend this period of time once by an additional 90 days

if he or she finds that unusual circumstances require additional

time to consider the issues presented by a proposed revocation.

If the Chief, Alcohol and Tobacco Programs Division, extends

the time period, he or she must notify the applicant by letter,

along with a brief explanation of the issues under consideration.

 

§ 13.44 Appeal of revocation.

 

(a) Filing of appeal. A certificate holder who wishes

to appeal the decision of the Chief, Alcohol and Tobacco Programs

Division, to revoke a certificate of label approval, certificate

of exemption from label approval, or distinctive liquor bottle

approval, may file a written appeal with the Assistant Director,

Alcohol and Tobacco, setting forth why the holder believes that

the decision of the Chief, Alcohol and Tobacco Programs Division,

was erroneous. The appeal must be filed with the Assistant Director,

Alcohol and Tobacco within 45 days after the date of receipt

of the decision of the Chief, Alcohol and Tobacco Programs Division.

(b) Judicial review. An appeal to the Assistant Director,

Alcohol and Tobacco, is required prior to application to the

Federal courts for review of any revocation of a certificate.

 

§ 13.45 Final decision after appeal.

 

(a) Issuance of Decision. After considering any written

arguments or evidence presented by the certificate holder or

the holder's representative, the Assistant Director, Alcohol

and Tobacco, must issue a final decision. If the decision is

to revoke the certificate of label approval, certificate of exemption

from label approval, or distinctive liquor bottle approval, a

letter must be issued explaining the basis for the revocation,

and the specific laws or regulations relied upon in determining

that the label or bottle was not in conformance with law or regulations.

If the decision is to withdraw the proposed revocation, a letter

explaining the decision must be sent.

(b) Time Limits for Decision. Within 90 days of receipt

of an appeal, the Assistant Director, Alcohol and Tobacco, must

notify the holder whether the appeal has been granted or denied.

If a certificate holder requests an informal conference as part

of an appeal, as authorized in § 13.71, the 90-day

period will begin 10 days after the date of the conference

to allow for consideration of any written arguments, facts or

evidence submitted after the conference. The Assistant Director,

Alcohol and Tobacco, may extend this period of time once by an

additional 90 days if he or she finds that unusual circumstances

require additional time to consider the issues presented by an

appeal. If the Assistant Director, Alcohol and Tobacco, extends

the period, he or she must notify the holder by letter, briefly

explaining the issues presented by the label. The decision of

the Assistant Director, Alcohol and Tobacco, will be the final

decision of the Bureau.

 

Subpart E - Revocation by Operation of Law or Regulation

 

§ 13.51 Revocation by operation of law or regulation.

 

ATF will not individually notify all holders of certificates

of label approval, certificates of exemption from label approval,

or distinctive liquor bottle approvals, that their approvals

have been revoked if the revocation occurs by operation of law

or regulation. If changes in labeling or other requirements are

made as a result of amendments or revisions to the law or regulations,

the certificate holder must voluntarily surrender all certificates

that are no longer in compliance. The holder must submit applications

for new certificates in compliance with the new requirements,

unless ATF determines that new applications are not necessary.

If a new application is unnecessary, it is the responsibility

of the certificate holder to ensure that labels are in compliance

with the requirements of the new regulations or law.

 

§ 13.52 Notice of revocation.

 

If ATF determines that a certificate holder is still using

a certificate of label approval, certificate of exemption from

label approval, or distinctive liquor bottle approval that is

no longer in compliance due to amendments or revisions in the

law or regulations, the Chief, Alcohol Labeling and Formulation Branch, will

notify the certificate holder in writing that the subject certificate

has been revoked by operation of law or regulations, with a brief

description of the grounds for such revocation.

 

§ 13.53 Appeal of notice of revocation.

 

Within 45 days after the date of receipt of a notice of revocation

by operation of law or regulations, the certificate holder may

file a written appeal with the Chief, Alcohol and Tobacco Programs

Division. The appeal should set forth the reasons why the certificate

holder believes that the regulation or law at issue does not

require the revocation of the certificate.

 

§ 13.54 Decision after appeal.

 

(a) Issuance of Decision. After considering all written

arguments and evidence submitted by the certificate holder, the

Chief, Alcohol and Tobacco Programs Division, must issue a final

decision regarding the revocation by operation of law or regulation

of the certificate. If the decision is that the law or regulation

at issue requires the revocation of the certificate of label

approval, certificate of exemption from label approval, or distinctive

liquor bottle approval, a letter must be issued explaining the

basis for the revocation, and citing the specific laws or regulations

which required the revocation of the certificate. If the decision

is that the law or regulation at issue does not require the revocation

of such certificate, a letter explaining the decision must be

sent to the certificate holder. The decision of the Chief, Alcohol

and Tobacco Programs Division, will be the final decision of

ATF.

(b) Time Limits for Decision. Within 90 days of receipt

of an appeal, the Chief, Alcohol and Tobacco Programs Division,

must notify the holder whether the appeal has been granted or

denied. If a certificate holder requests an informal conference

as part of an appeal, as authorized in § 13.71, the

90-day period will begin 10 days after the date of the conference

to allow for consideration of any written arguments, facts or

evidence submitted after the conference. The Chief, Alcohol and

Tobacco Programs Division, may extend this period of time once

by an additional 90 days if he or she finds that unusual circumstances

require additional time to consider the issues presented by an

appeal. If the Chief, Alcohol and Tobacco Programs Division,

extends the period, he or she must notify the holder by letter,

briefly explaining the issues presented by the label. The decision

of the Chief, Alcohol and Tobacco Programs Division, will be

the final decision of ATF.

 

Subpart F - Miscellaneous

 

§ 13.61 Publicity of information.

 

(a) Pending and denied applications. Pending and denied

applications for certificates of label approval, certificates

of exemption from label approval, or distinctive liquor bottle

approvals are treated as proprietary information, unless the

applicant or certificate holder provides written authorization

to release such information.

(b) Approved applications. The Chief, Alcohol Labeling and Formulation Branch, shall cause to be maintained in the ATF Library for public

inspection, a copy of each approved application for certificate

of label approval, certificate of exemption from label approval,

or distinctive liquor bottle approval. These documents may be

viewed during business hours at 650 Massachusetts Avenue, NW,

Washington, DC 20226.

(c) Revoked certificates. If an approved certificate

is subsequently revoked, the record of the approved application

will remain on file for public inspection, but the index will

be annotated to show it was revoked.

(d) Further disclosure of information on denied or revoked

certificates. If an applicant whose application is pending

or has been denied, or a holder of a revoked certificate of label

approval, certificate of exemption from label approval, or distinctive

liquor bottle approval, issues public statements concerning ATF

action in connection with such application or certificate, then

ATF may issue a statement to clarify its position or correct

any misstatements of fact, including a disclosure of information

contained on the application or certificate of label approval,

certificate of exemption from label approval, or distinctive

liquor bottle approval.

 

§ 13.62 Third-party comment on certificates.

 

When a third party (such as a foreign government, another

Federal agency, a State agency, an industry association, a competitor

of a certificate holder, a consumer or consumer group, or any

other interested person) wishes to comment on an approved certificate

of label approval, certificate of exemption from label approval,

or distinctive liquor bottle approval, such comments should be

submitted in writing to the Chief, Alcohol Labeling and Formulation Branch.

The Chief, Alcohol Labeling and Formulation Branch, will review the subject

of the comment. If the comment raises an issue that is outside

the scope of ATF`s statutory or regulatory authority, or the

Chief, Alcohol Labeling and Formulation Branch, determines that the certificate

is in compliance with applicable law and regulations, the commenter

will be informed that no further action will be taken. If the

Chief, Alcohol Labeling and Formulation Branch, determines that the commenter

has raised a valid issue that ATF has authority to address, then

the Chief, Alcohol Labeling and Formulation Branch, will initiate appropriate

action. The Chief, Alcohol Labeling and Formulation Branch, may, in his or

her discretion, notify the commenter as to the action being taken

by ATF with respect to the certificate.

 

§ 13.71 Informal conferences.

 

(a) General. As part of a timely filed written appeal

of a notice of denial, a notice of proposed revocation, or a

decision of the Chief, Alcohol and Tobacco Programs Division,

to revoke a certificate, an applicant or certificate holder may

file a written request for an informal conference with the ATF

official deciding the appeal, or that official’s delegate.

(b) Informal conference procedures. The deciding official,

or such official’s delegate, and the applicant or certificate

holder will agree upon a date for an informal conference. The

informal conference is for purposes of discussion only, and no

transcript shall be made. If the applicant or certificate holder

wishes to rely upon arguments, facts, or evidence presented at

the informal conference, he or she has 10 days after the date

of the conference to incorporate such arguments, facts, or evidence

in a written submission to the deciding official.

 

§ 13.72 Effective dates of revocations.

 

(a) Effective dates.

(1) Revocation of specific certificates. A written

decision to revoke a certificate becomes effective 60 days after

the date of the decision.

(2) Revocation by operation of law or regulation. If

a certificate is revoked by operation of law or regulation, the

revocation becomes effective on the effective date of the change

in law or regulation with which the certificate does not comply,

or if a separate label compliance date is given, on that date.

(b) Use of certificate during period of appeal.

If a certificate holder files a timely appeal after receipt

of a decision to revoke a certificate from the Chief, Alcohol

and Tobacco Programs Division, pursuant to section 13.45, the

holder may continue to use the certificate at issue until the

effective date of a final decision issued by the Assistant Director,

Alcohol and Tobacco. However, the effective date of a notice

of revocation by operation of law or regulations, issued pursuant

to section 13.52, is not stayed pending the appeal.

 

§ 13.73 Effect of revocation.

 

On and after the effective date of a revocation of a certificate

of label approval, certificate of exemption from label approval,

or distinctive liquor bottle approval, the label or distinctive

liquor bottle in question may not be used to bottle or pack distilled

spirits, wine or malt beverages, to remove such products from

the place where they were bottled or packed, or to remove such

products from customs custody for consumption.

 

§ 13.74 Surrender of certificates.

 

On the effective date of a final decision that has been issued

by the Chief, Alcohol and Tobacco Programs Division, or the Assistant

Director, Alcohol and Tobacco,

to revoke a certificate of label approval, certificate of

exemption from label approval, or distinctive liquor bottle approval,

the certificate holder must surrender the original of the certificate

to ATF for manual cancellation. Regardless of whether the original

certificate of label approval, certificate of exemption from

label approval, or distinctive liquor bottle approval has been

manually canceled or not, the certificate is null and void after

the effective date of the revocation. It is a violation of this

section for any certificate holder to present a certificate of

label approval, certificate of exemption from label approval,

or distinctive liquor bottle approval to an official of the United

States Government as a valid certificate after the effective

date of the revocation of the certificate if the certificate

holder has been previously notified that such certificate has

been revoked by ATF.

 

§ 13.75 Evidence of receipt by ATF.

 

If there is a time limit on ATF action that runs from ATF's

receipt of a document, the date of receipt may be established

by a certified mail receipt or equivalent written acknowledgment

secured by a commercial delivery service or by a written acknowledgment

of personal delivery. In the absence of proof of receipt, the

date the document is logged in by ATF will be considered the

date of receipt.

 

§ 13.76 Service on applicant or certificate holder.

 

(a) Method of service. ATF must serve notices of denial

on an applicant by first class mail, or by personal delivery.

ATF must serve notices of proposed revocation and notices of

revocation on a certificate holder by certified mail, return

receipt requested, by a commercial delivery service that will

provide an equivalent written acknowledgment from the recipient,

or by personal delivery.

(b) Date of receipt. If there is a time limit on a

certificate holder's action that runs from the holder's receipt

of a document, the date of receipt may be established by a certified

mail receipt, an equivalent written acknowledgment secured by

a commercial delivery service, or by a written acknowledgment

of personal delivery.

(c) Person to be served. When service is by mail or

other commercial delivery service, a copy of the document must

be sent to the applicant or certificate holder at the address

stated in the application or at the last known address. If authorized

by the applicant or certificate holder, the copy of the document

may be mailed to a designated representative. If service is by

personal delivery, a copy of the document must be delivered to

the certificate holder or to a designated representative. In

the case of a corporation, partnership, or association, personal

delivery may be made to an officer, manager, or general agent

thereof, or to the attorney of record.

 

§ 13.81 Representation before ATF.

 

An applicant or certificate holder may be represented by an

attorney, certified public accountant, or other person recognized

to practice before ATF as provided in 31 CFR Part 8 (Practice

Before the Bureau of Alcohol, Tobacco and Firearms). The applicable

requirements of 26 CFR 601.521 through 601.527 (conference and

practice requirements for alcohol, tobacco, and firearms activities)

shall apply.

 

§ 13.91 Computation of time.

 

In computing any period of time prescribed or allowed by this

part, the day of the act, event or default after which the designated

period of time is to run, is not counted. The last day of the

period to be computed is counted, unless it is a Saturday, Sunday,

or legal holiday, in which case the period runs until the next

day that is not a Saturday, Sunday, or legal holiday. Papers

or documents that are required or permitted to be filed under

this part must be received at the appropriate office within the

filing time limits, if any.

 

§ 13.92 Extensions.

 

An applicant or certificate holder may apply to the Chief,

Alcohol Labeling and Formulation Branch, the Chief, Alcohol and Tobacco Programs

Division, or the Assistant Director, Alcohol and Tobacco for

an extension of any time limit prescribed in this part. The time

limit may be extended if ATF agrees the request is reasonable.

 

PART 19 - DISTILLED SPIRITS PLANTS [AMENDED]

 

Par. 12. The authority citation for Part 19 continues

to read as follows:

 

Authority: 19 U.S.C. 81c, 1311; 26 U.S.C. 5001, 5002,

5004-5006, 5008, 5010, 5041, 5061, 5062, 5066, 5081, 5101, 5111-5113,

5142, 5143, 5146, 5171-5173, 5175, 5176, 5178-5181, 5201-5204,

5206, 5207, 5211-5215, 5221-5223, 5231, 5232, 5235, 5236, 5241-5243,

5271, 5273, 5301, 5311-5313, 5362, 5370, 5373, 5501-5505, 5551-5555,

5559, 5561, 5562, 5601, 5612, 5682, 6001, 6065, 6109, 6302, 6311,

6676, 6806, 7011, 7510, 7805; 31 U.S.C. 9301, 9303, 9304, 9306.

 

Par. 13. Section 19.633 is amended to add paragraph

(c) to read as follows:

 

§ 19.633 Distinctive liquor bottles.

 

* * * * *

 

(c) Cross reference. For procedures regarding issuance,

denial and revocation of distinctive liquor bottle approvals,

as well as appeal procedures, see Part 13 of this chapter.

Par. 14. Section 19.641 is revised to read as follows:

 

§ 19.641 Certificate of label approval or exemption.

 

(a) Requirement. Proprietors are required by 27 CFR

Part 5 to obtain approval of labels, or exemption from label

approval, for any label to be used on bottles of spirits for

domestic use and shall exhibit evidence of label approval, or

of exemption from label approval, on request of an ATF officer.

(b) Cross reference. For procedures regarding the issuance,

denial and revocation of certificates of label approval and certificates

of exemption from label approval, as well as appeal procedures,

see Part 13 of this chapter.

(Sec. 201, Pub. L. 85-859, 72 Stat. 1356, as amended (26 U.S.C.

5201))

 

 

Signed: August 6, 1998.

 

 

 

John W. Magaw

Director

 

Approved: December 11, 1998.

 

John P. Simpson

Deputy Assistant Secretary, (Regulatory,

Tariff and Trade Enforcement).

 

[FR Doc. 99-624 Filed 1-12-99; 8:45 am]

 

 

TITLE 27 ¾ ALCOHOL, TOBACCO

PRODUCTS AND FIREARMS ¾ CHAPTER

I ¾ BUREAU OF ALCOHOL, TOBACCO

AND FIREARMS, DEPARTMENT OF THE TREASURY

 

Procedures for the issuance, Denial,

and Revocation of Certificates of Label Approval, Certificates

of Exemption From Label Approval, and Distinctive Liquor Bottle

Approvals (93F-029P); Correction

 

T.D. ATF-406a

 

27 CFR Part 13

 

ACTION: Final rule; correction.

 

SUMMARY: This document corrects the regulatory text

of a final rule published in the Federal Register of January

13, 1999, regarding issuance, denial, and revocation of certificates

of label approval, certificates of exemption from label approval,

and distinctive liquor bottle approvals.

 

DATES: Effective March 15, 1999.

 

FOR FURTHER INFORMATION CONTACT: Edward A. Reisman,

Product Compliance

Branch, Bureau of Alcohol, Tobacco and Firearms, 650 Massachusetts

Avenue, NW, Washington, DC 20226, Telephone (202) 927-8140.

 

SUPPLEMENTARY INFORMATION: The Bureau of Alcohol, Tobacco

and Firearms

published a document in the Federal Register of January 13,

1999, (64 FR 2122). Several words were omitted from the text

of 27 CFR 13.27. This document corrects this error.

In rule FR Doc. 99-624, published on January 13, 1999, make

the following correction:

 

§ 13.27 [Corrected]

 

On page 2131, in the center column, correct the first full

sentence of Sec. 13.27(a) to read: "The decision of the

Chief, Alcohol Labeling and Formulation Branch, may be appealed in writing

to the Chief,

Alcohol and Tobacco Programs Division, within 45 days after

the date of the decision of the Chief, Alcohol Labeling and Formulation Branch."

 

Signed: February 23, 1999.

 

John W. Magaw,

Director, Bureau of Alcohol, Tobacco and Firearms.

 

[FR Doc. 99-5090 Filed 3-5-99; 8:45 am]

 

 

TITLE 27 ¾ ALCOHOL, TOBACCO

PRODUCTS AND FIREARMS ¾ CHAPTER

I ¾ BUREAU OF ALCOHOL, TOBACCO

AND FIREARMS, DEPARTMENT OF THE TREASURY

 

Establishment of the San Francisco Bay

Viticultural Area and the Realignment of the Boundary of the

Central Coast Viticultural Area (97-242)

 

T.D. ATF- 407

 

27 CFR Part 9

 

ACTION: Treasury decision, final rule.

 

SUMMARY: This Treasury decision establishes a viticultural

area in the State of California to be known as "San Francisco

Bay," under 27 CFR part 9. The viticultural area is located

mainly within five counties which border the San Francisco Bay

and partly within two other counties. These counties are: San

Francisco, San Mateo, Santa Clara, Alameda, Contra Costa, and

partly in Santa Cruz and San Benito Counties. The "San Francisco

Bay" viticultural area encompasses approximately 2,448 square

miles total and contains nearly 5,800 acres planted to grapes

and over 39 wineries. In conjunction with establishing the "San

Francisco Bay" viticultural area, ATF is amending the boundaries

of the Central Coast viticultural area to include the "San

Francisco Bay" viticultural area. The previous boundaries

of the Central Coast viticultural area already encompassed part

of the "San Francisco Bay" viticultural area. Approximately

639 square miles is added to Central Coast with an additional

2,827 acres planted to grapes.

 

EFFECTIVE DATE: 60 days from date of publication

in the Federal Register.

 

FOR FURTHER INFORMATION CONTACT: David Brokaw, Regulations

Division, Bureau of Alcohol, Tobacco and Firearms, Washington,

DC 20226, 650 Massachusetts Avenue, NW, Washington, DC., 20226,

(202) 927-8199.

 

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 definitive viticultural

areas. The regulations allow the name of an approved viticultural

area to be used as an appellation of origin on wine labels and

in wine advertisements. On October 2, 1979, ATF published Treasury

Decision ATF-60 (44 FR 56692) which added a new Part 9 to 27

CFR, for the listing of approved American viticultural areas,

the names of which may be used as appellations of origin.

Section 4.25a(e)(1), title 27, CFR, defines an American viticultural

area as a delimited grape-growing region distinguishable by geographic

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 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 characteristics

(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 (or copies) of the appropriate U.S.G.S. map(s)

with the boundaries prominently marked.

 

Petition for the San Francisco Bay Viticultural Area

 

A consortium of nearly 75 growers and vintners led by Wente

Bros., petitioned ATF to establish a new viticultural area in

Northern California known as "San Francisco Bay," that

will be included within the Central Coast viticultural area.

The "San Francisco Bay" viticultural area is located

mainly within five counties which border the San Francisco Bay

and partly within two other counties. These counties are: San

Francisco, San Mateo, Santa Clara, Alameda, Contra Costa, and

partly in Santa Cruz and San Benito Counties. Santa Cruz County,

although it has no Bay shoreline, has traditionally been associated

with the place name "San Francisco Bay." The portion

of the Santa Clara Valley located in San Benito County has been

included. The viticultural area encompasses approximately 2,448

square miles total containing nearly 5,800 acres planted to grapes

and over 39 wineries.

ATF has determined that the area is distinguished by a marine

climate which is heavily influenced by the proximity of the San

Francisco Bay and the Pacific Ocean. Specifically, the San Francisco

Bay and the local geographical features surrounding it permit

the cooling influence of the Pacific Ocean to reach farther into

the interior of California in the Bay Area than elsewhere along

the California coast.

The waters of the San Francisco Bay as well as urban areas,

particularly the City of San Francisco, have purposely been included

since San Francisco Bay is the source of the viticultural area’s

weather and the focal point of its history. Although it is not

a likely vineyard site, the city has long been a wine industry

hub.

 

Comments

 

On October 20, 1997, ATF published a notice of proposed rulemaking,

Notice No. 856, in the Federal Register soliciting comments on

the proposed viticultural area. Given the scope of the proposals

and the wide range of interests that were likely to be affected

by the establishment of a San Francisco Bay viticultural area,

ATF solicited specific public comment with respect to certain

questions raised by the petition. ATF asked the following questions

in Notice No. 856:

1) Is there sufficient evidence that the name, "San Francisco

Bay," can be associated with regions south and east of the

bay such as Santa Clara Valley and Livermore? Do these regions

have climatic or geographic differences with other regions of

the proposed area to such a degree that they cannot be considered

as one viticultural area?

2) Does the evidence support exclusion from the proposed viticultural

area of the regions north of the Bay, i.e., Marin, Napa,

Solano, and Sonoma Counties?

3) Can the regions where grapes cannot be grown in the proposed

viticultural area, such as the dense urban settings and the Bay

itself, be easily segregated from the rest of the proposed area?

Does it undermine the notion of a viticultural area to keep them

included?

 

ATF received 49 comments in response to Notice No. 856. Basically,

the comments fall into five categories. These categories are

as follows: those in support (9), those in support for expanding

the "San Francisco Bay" area (1), those that oppose

"San Francisco Bay" but support the Central Coast expansion

(3), those that oppose being associated with another viticultural

area (33), and those that oppose the creation of "San Francisco

Bay "(3).

Those in support felt that the appellation clearly defines

a unique area influenced by San Francisco Bay weather patterns.

Among the favorable comments were statements indicating that

approval of the area would align the boundaries between coastal

appellations, would recognize a historic wine growing region,

would reinforce the economic impact of wine growing in the area,

and would be of benefit in educating the wine consumer.

One respondent, the Allied Grape Growers, disagreed that the

coastal climatic influences stop at the crest of the hills of

Altamont. This respondent felt that the Brentwood - Byron area

is now considered by most independent observers as a part of

the "San Francisco Bay" area. While this respondent

believed that Brentwood - Byron corridor should be included,

no specific evidence was provided.

Three respondents opposed the "San Francisco Bay"

viticultural area but supported the expansion of the Central

Coast viticultural area. Among these respondents was the Sonoma

County Grape Growers Association. The Association claimed that

the petitioners have taken reference works out of context with

"preposterous" results. The Association cited dramatic

differences in climatic conditions (San Francisco and Livermore),

conflicting definitions of the area (disagreement over what constitutes

the Bay area), the fact that the climate of San Francisco cannot

sustain winegrape growing, and that the proposal was for marketing

purposes only. The Association believed that it is not a meaningful

viticultural area and will undermine the integrity of the American

viticultural area system. On the other hand, the Association

believed that there seems to be no reason to oppose expanding

the Central Coast viticultural area. The remaining two respondents

in this category generally felt that it is too broad an appellation

to have climatic integrity and seemed to have been proposed for

marketing and convenience considerations. One of the respondents

felt that the Central Coast appellation needs to be reexamined

while the other respondent felt that the Santa Cruz Mountains

viticultural area should be included in the Central Coast viticultural

area.

Thirty-three respondents opposed being associated with either

the "San Francisco Bay" viticultural area or the expansion

of the Central Coast viticultural area. These respondents were

from the Santa Cruz Mountains viticultural area. They felt that

they have worked hard to establish the distinctiveness of their

wines and inclusion in either the "San Francisco Bay"

viticultural area or the expanded central coast viticultural

area will do them "incalculable damage." These respondents

claimed that the soils, rainfall, climate, and physical features

of Livermore differ completely from those of the Santa Cruz Mountains

viticultural area. They stated that their vineyards are, for

the most part, above the fogs. The average temperatures are in

the 2140 to 2880 degree-day zone while Livermore is 3400. Rainfall

for Livermore is listed in the petition at 18 inches. These respondents

stated that the Santa Cruz Mountains viticultural area averages

more than double that amount of rainfall at a minimum of 36 to

40 inches. Further, the Santa Cruz Mountains viticultural area

shares virtually none of the soil types of Livermore with the

soils producing average yields dramatically smaller than the

average yields in Livermore, resulting in a different style of

wine entirely. These respondents claimed that the excluded areas

in the "North Bay" and "East Bay" share far

more geographical and climatic features with Livermore than does

the Santa Cruz Mountains viticultural area. In addition, these

respondents felt that it would undermine the meaning of American

viticultural areas by including large, dissimilar areas where

grapes cannot be grown. Specifically, these areas include the

northern half of the San Francisco Peninsula which is too cold

to grow grapes, the heavy urban populations of Oakland and the

East Bay, and the Bay itself, which is not an inland lake but

a large bay of the Pacific Ocean. These respondents also felt

that including areas like southern Santa Clara County, and parts

of San Benito County would mislead the American public since

residents of these areas, as well as Santa Cruz County, historically

have not been considered and do not consider themselves to be

living in the San Francisco Bay area. Similarly, these respondents

opposed the inclusion of the Santa Cruz Mountains viticultural

area in the expanded Central Coast viticultural area since the

Santa Cruz Mountains viticultural area does not share the same

soils, climate or geographical characteristics. These respondents

also felt that the Central coast is a recent construct having

only limited validity from Monterey Bay south.

Three respondents generally opposed the creation of the viticultural

area. One of these respondents, Mr. William Drake, claimed that

anyone who has spent any time at all in the Bay Area is well

aware that there are extreme differences in the various climates

between the areas included in the petition. In addition, Mr. Drake

claimed that the topography of this nearly two million acre proposed

area differs dramatically as one travels from the eastern portion

westward to, and over the coastal mountains. Mr. Drake also believed

that while there may be a Bay Area, that area is understood to

include a number of distinctly different areas, some of which

are even outside of the Bay Area, let alone the "San Francisco

Bay Area." Another respondent in opposition was the Association

of California North Coast Grape Growers. Regarding the name evidence,

the Association stated that Santa Clara, Santa Cruz, and San

Benito are nowhere near the San Francisco Bay. If anything, Santa

Cruz is associated with Monterey Bay. The Association further

stated that the petitioner provided no supporting evidence that

the San Benito area is locally or nationally known to be affiliated

with San Francisco. Regarding the exclusion of areas north of

the Bay, i.e., Marin, Napa, Solano, and Sonoma Counties,

the Association felt that there was not supporting evidence,

on the one hand to exclude these areas, while, on the other hand,

there was not supporting evidence that the "San Francisco

Bay" area should be included with regions north of the bay.

The Association felt that the most important question revolves

around the purpose of appellation names, i.e., to identify

and distinguish grape growing regions which are unique from other

growing regions based on geographic, altitude, climate, and soil

conditions. The Association believed that the fact that the City

of San Francisco is "not a feasible vineyard site"

seemed to be a prima facie case for immediate disqualification

of the appellation name. The Association also believed that the

fact that the "San Francisco Bay is a locally, nationally

or internationally recognized place name" is completely

irrelevant to the issue of whether that place is known for growing

wine grapes. The City of San Francisco, and certainly its bay,

are not viticultural areas, according to the Association. The

Association went on to state that the petitioner might do just

as well calling the viticultural area "Golden Gate Region"

if name recognition is to be the litmus test for approving an

appellation petition. The Association further believed that if

this area is approved, it would set a precedent that would allow

specific city or location names to be used to describe very large

geographic areas. According to the Association, the North Coast

appellation could be renamed "Napa Area," Central Coast

could be called "Santa Barbara," and the Central Valley

might be named "Yosemite." The Association felt that

should the petitioned area be found to be unique, and a qualified

appellation area, the name of the region should be more generalized

(i.e., Central Bay Area) as opposed to the specific city

name of San Francisco. The Association claimed that misstatements

and irrelevant evidence was provided by the petitioner. As examples,

excerpts from Hugh Johnson’s book The World Atlas of

Wine and Robert Lawrence Balzer’s Vineyards and Wineries:

Bay Area and Central Coast Counties were cited to illustrate

that the "Bay Area" is not accepted by these authors

and industry experts as a viticultural region as claimed by the

petitioners. The Association further claimed that the petitioners

have provided extraneous historical and current evidence. The

Association cited the use of grape pricing districts as setting

a bad precedent to be used as a determinant for appellation designation

approval. The Association pointed out that San Benito is clearly

not listed as a part of the Grape Pricing District which includes

San Francisco, San Mateo, Santa Cruz, Santa Clara, Alameda and

Contra Costa.

 

ATF Analysis of Comments

 

ATF has reviewed both the comments and the petitioner’s

response to them and has concluded that, with one exception,

the petitioner has demonstrated that the proposed area represents

a continuum of coastal climate that is moderated and altered

by San Francisco Bay creating a distinct and recognizable area

known as "San Francisco Bay." The exception is the

Santa Cruz Mountains viticultural area. According to the comments

from members of the Santa Cruz Mountains Winegrowers Association,

the Santa Cruz Mountains vineyards, in the vast majority, are

located above the coastal fogs. The Santa Cruz vintners believe

that the Santa Cruz Mountains viticultural area is based primarily

on altitude and is not affected by the climates below. They also

point out that their viticultural area does not share the soils,

climate, or geographical characteristics of other viticultural

areas in the State. The Santa Cruz Mountains viticultural area

is characterized by a climate which is greatly influenced in

the western portion by the Pacific Ocean breezes and fog movements,

and in the eastern portion by the moderating influences of the

San Francisco Bay. These two influences tend to produce weather

which is generally cool during the growing season. Temperatures

in the slopes of the hillsides where most of the vineyards are

located appear to vary from that at the lower elevations. This

is caused by the marine influence coming off the Pacific Ocean

which cools the mountains at night much more than the valley

floor. ATF has concluded that the Santa Cruz Mountains viticultural

area exhibits features and characteristics unique to its boundaries

when compared to the surrounding areas and should not be included

within the "San Francisco Bay" viticultural area. Accordingly,

The Santa Cruz Mountains viticultural area has been excluded

from the "San Francisco Bay" viticultural area.

ATF further believes that there is no significant or substantive

evidence at this time that would warrant holding hearings on

this issue as requested in some of the comments from the Santa

Cruz Mountains vintners.

Finally, ATF is not including the Brentwood - Byron area as

requested by the Allied Grape Growers. While this respondent

believed that the coastal climatic influences extended into the

Brentwood - Byron corridor, no specific evidence was provided

to support this request.

 

Evidence That the Name of the Area is Locally or Nationally

Known.

 

"San Francisco Bay" is a locally, nationally and

internationally recognized place name. ATF has concluded that

"San Francisco Bay" is the appropriate name for the

area. San Francisco Bay is widely recognized as the well-known

body of water by that name and, by inference, the land areas

that surround it.

The counties of San Francisco, Contra Costa, Alameda, Santa

Clara and San Mateo---within which the area is located---border

the San Francisco Bay. Santa Cruz County, although it has no

Bay shoreline, has traditionally been associated with the place

name "San Francisco Bay." Also included is the portion

of the Santa Clara Valley located in San Benito County.

The names "San Francisco Bay area" or "San

Francisco Bay region" sometimes refer to an area that is

different than the area discussed in the petition. Although sources

differ in how broadly they define the San Francisco Bay region,

the various definitions---without exception---include the counties

mentioned above. The following sources were cited by the petitioner

as being representative of the consensus among experts that the

petitioned area is widely known by the name San Francisco Bay.

The name San Francisco Bay is more frequently and more strongly

associated with the counties lying south and east of the San

Francisco Bay than with nearby counties to the north. For example,

the 1967 Time Life book entitled The Pacific States, describes

the San Francisco Bay Area as a megalopolis with the city [of

San Francisco] as the center, stretching 40 miles south to San

Jose and from the Pacific to Oakland and beyond.

The weather expert Harold Gilliam, in his book Weather

of the San Francisco Bay Region, discusses an area including

San Francisco, San Mateo, Alameda, Contra Costa, and Santa Cruz

Counties. James E. Vance, Jr., Professor of Geography at the

University of California, Berkeley, studied the same area in

his book entitled Geography and Urban Evolution in the San

Francisco Bay Area. Also, climatologist Clyde Patton studied

the same region in his definitive work Climatology of Summer

Fogs in the San Francisco Bay Area. Mr. Vance’s and

Mr. Patton’s maps of "Bay Area Place Names" were

included with the petition.

A final source is Lawrence Kinnaird, University of California

Professor of History, who wrote a History of the Greater San

Francisco Bay Region. Mr. Kinnaird’s book also covers

the counties of San Francisco, Santa Clara, Alameda, Contra Costa,

San Mateo, and Santa Cruz.

 

Historical or Current Evidence That the Boundaries of the

Viticultural Area are as Specified in the Petition.

 

Within the grape growing and winemaking community, the name

San Francisco Bay has always been identified with the "San

Francisco Bay " viticultural area. Several references reflect

the industry’s perception of this place name.

For example, wine writer Hugh Johnson, in his book The

World Atlas of Wine, devotes a separate section ("South

of the Bay") to the winegrowing areas of the San Francisco

Bay and Central Coast. Mr. Johnson describes the traditional

centers of wine-growing in this area as concentrated in the Livermore

Valley east of the Bay; the western foot-hills of the Diablo

range; the towns south of the Bay, and along the slopes of the

Santa Cruz mountains down to a cluster of family wineries round

the Hecker Pass. Mr. Johnson repeatedly distinguishes the winegrowing

region south and east of the Bay from areas to the north of the

Bay. A statement in Mr. Johnson’s book points out that the

area just south and east of San Francisco Bay is wine country

as old as the Napa Valley.

Another writer, Robert Lawrence Balzer devotes a chapter to

"Vineyards and Wineries: Bay Area and Central Coast Counties"

in his book Wines of California. This chapter and the

accompanying map include wineries and vineyards in Alameda, Contra

Costa, San Mateo, Santa Clara, and Santa Cruz Counties. Throughout

his book, Mr. Balzer makes it clear that he differentiates the

San Francisco Bay area grape growing areas from those north of

San Francisco Bay and south of Monterey Bay. In support of this

claim are several quotes from the book. For example, Mr. Balzer

states that, "Logic, as well as geography, dictates our

division into these unofficial groups of counties: North Coast,

Bay Area and Central Coast, South Central Coast, Central Valley,

and Southern California. The vineyard domain south of San Francisco

is as rich and colorful in its vintage history as the more celebrated

regions north of the Bay Area." This author does not consider

Napa and Sonoma Counties as part of the Bay Area. The following

statement is evidence of this. "Alameda County does not

have the scenic charm of ... Napa and Sonoma...." The same

book contains a photograph showing the Golden Gate Bridge and

San Francisco Bay with the caption, "San Francisco Bay divides

the North Coast from the other wine areas of California."

Another source in support of the "San Francisco Bay"

viticultural area boundaries is "Grape Intelligence,"

a reporting service for California winegrape industry statistics.

Grape Intelligence issues a yearly report for grape varieties

in the San Francisco Bay Area. Reports for this region cover

San Francisco, San Mateo, Santa Cruz, Alameda and Contra Costa

Counties.

As historical evidence, the San Francisco Viticultural District,

defined by the State Viticultural Commissioners at the end of

the last century, comprised the counties of San Francisco, San

Mateo, Alameda, Santa Clara, Santa Cruz, San Benito, and Monterey---but

no areas north of the Bay.

The California Department of Food and Agriculture currently

considers the area as a single unit. The Grape Pricing Districts

established by the State of California reflect the joined perception

of the six San Francisco Bay counties, by grouping San Francisco,

San Mateo, Santa Cruz, Santa Clara, Alameda, and Contra Costa

together in District 6.

A list of "Largest Bay Area Wineries" from a chart

which appeared in the San Francisco Business Times of November

21, 1988, includes 21 wineries in Alameda, Contra Costa, San

Francisco, and San Mateo Counties. No wineries from the North

Coast counties of Sonoma, Napa, Mendocino, or Lake are included.

 

Evidence Relating to the Geographical Features (Climate,

Soil, Elevation, Physical Features, Etc.) Which Distinguish Viticultural

Features of the Area From Surrounding Areas.

 

Climate

 

The unifying and distinguishing feature of the coastal climate

of the "San Francisco Bay" viticultural area is the

influence of both the Pacific Ocean and the San Francisco Bay.

Coastal areas north of the appellation area are influenced by

the Pacific Ocean and by the San Pablo and Richardson Bays, while

areas south of the appellation area are influenced by the Pacific

Ocean and by Monterey Bay. In addition, the ocean influence enters

each region through different routes---through the Estero Gap

in the North Coast, through the Golden Gate in the San Francisco

Bay region, and through Monterey Bay in the southerly portion

of Central Coast.

West to east flowing winds named the westerlies, which bring

weather systems in California onshore from the ocean, prevail

in the "San Francisco Bay" viticultural area. Directly

affecting the weather in the area is the Pacific high pressure

system, centered a thousand miles off the Pacific Coast. During

winter months, its location south of San Francisco allows the

passage of westward moving, rain producing, low pressure storms

through the area.

During the summer months the high is located closer to the

latitude of San Francisco. It then deflects rain, producing storms

to the north, producing a dry summer climate in the San Francisco

area. The winds from the high (which flow onshore from the northwest

to the southeast) produce a cold southward flowing surface water

current (called the California Current) off the California coast

by a process called upwelling, in which cold deep water is brought

to the surface. When moist marine air from the Pacific High flows

onshore over this cold water, it cools, producing fog and/or

stratus cloud areas which are transported inland by wind.

 

Climatic Affect and Boundaries

 

From a meteorological perspective, the northwesterly windflow

through the Estero Gap (near Petaluma in Sonoma County) into

the Petaluma Valley, provides the major source of marine influence

for areas north of the Golden Gate. Airflow inland from San Pablo

Bay also affects the climate of southern Napa and Sonoma Counties.

San Francisco Bay has little impact on the weather in the region

to its north. The onshore prevailing northwesterly flow direction,

in combination with the coastal range topographic features of

counties north of the Bay and the pressure differential of the

Central Valley, minimize a northward influence from the air that

enters the Golden Gate. The higher humidity, lower temperatures,

and wind flow that enter the Golden Gate gap do not flow north

of the San Francisco Bay.

As a result of the different air mass sources, grape-growing

sites immediately north of the Bay are cooler than corresponding

sites in the Bay Area. As an example, General Viticulture

lists Napa with 2880 degree-days, while Martinez (directly

south of Napa on the Carquinez Strait) has 3500 degree-days.

Calistoga is listed as 3150 degree-days, while Livermore (approximately

equidistant from the Carquinez Strait, but to the south) has

3400. The degree-day concept was developed by UC Davis Professors

Amerine and Winkler as a measure of climate support for vine

growth and grape ripening; large degree-day values indicate warmer

climates.

The "San Francisco Bay" viticultural area is also

distinguished from the counties north of the San Francisco Bay

by annual rainfall amounts. Most winter storms that hit the Central

California coast originate in the Gulf of Alaska. Thus, locations

in the North Coast viticultural area generally receive more rain

than sites in the "San Francisco Bay" viticultural

area.

This effect is illustrated by Hamilton Air Force Base on the

northwest shore of the San Pablo Bay in Marin County. The base

gets 25 percent more rain in a season than does San Mateo, which

has a corresponding bayshore location 34 miles to the south.

San Francisco gets an average of 21 inches of rain annually,

but nine miles north of the Golden Gate, Kentfield gets 46 inches

- more than double the amount of rain. Average rainfall over

the entire south bay wine producing area is only 18 inches, while

the City of Napa averages 25 inches, Sonoma County (average of

5 sites) averages 35 inches, and Mendocino County averages 40

inches.

It should be noted that the California North Coast Grape Growers

advanced a position that is consistent with the petitioner’s

current position. In a letter to the Bureau of Alcohol, Tobacco

and Firearms dated September 14, 1979, they asked that the term

North Coast Counties be applied only to Napa, Sonoma and Mendocino

Counties. Part of their reasoning was the observations of Professor

Crowley of the Geography Department at Sonoma State University

who said that the counties north of the San Francisco Bay have

different climates from the counties south of the bay.

Thus, the main determinants of the northern boundary of the

viticultural area include the: (1) natural geographic/topographic

barriers, (2) lack of direct San Francisco Bay influence in areas

to its north, and (3) different predominant coastal influences

in the northern area. These factors lead to significant wind

flow, temperature, and precipitation differences between the

areas north and south of San Francisco Bay. Thus, it is logical

to draw the northern boundary of the proposed area at the point

where the Golden Gate Bridge and San Francisco Bay separate the

northern counties, i.e., Marin, Napa, Solano, and Sonoma

of the North Coast viticultural area from the counties of San

Francisco and Contra Costa.

The eastern boundary of the "San Francisco Bay"

viticultural area matches the existing boundary of the Central

Coast viticultural area and is located at the inland boundary

of significant coastal influence, i.e., along the hills

and mountains of the Diablo Range that form a topographical barrier

to the intrusion of marine air.

East of the Diablo Range lies the Central Valley, distinguished

from the "San Francisco Bay" viticultural area by its

higher temperature, lower humidity, and decreased rainfall. The

Central Valley has a completely continental climate, i.e.,

much hotter in summer and cooler in winter. Amerine & Winkler

categorize the grape growing areas in the Central Valley (Modesto,

Oakdale, Stockton, Fresno) as Region V (over 4000 degree-days),

while sites in the "San Francisco Bay" viticultural

area range from Region I to III. This is illustrated on a "Degree

Day Map" provided by the petitioner.

North of Altamont, the viticultural area boundary continues

to follow the inland boundary of coastal influence. (This portion

of the boundary matches the boundary extension for the Central

Coast Viticultural area.) Like the existing eastern boundary

of the Central Coast, this extension excludes the innermost range

of coastal mountains. The eastern boundary includes Martinez

and Concord, but excludes Antioch, and the eastern portion of

Contra Costa County.

The average precipitation in the Central Valley is lower than

in the "San Francisco Bay" viticultural area. Following

are thirty year average rainfall statistics in inches for locations

in the Central Valley: Modesto 10.75, Fresno 10.32, Los Banos

7.98, Lodi 12.74, Antioch 12.97.

Thus, the main determinants of the eastern boundary of the

viticultural area include the (1) historic existing eastern boundary

of the Central Coast viticultural area, (2) natural geographic/topographic

climatic barrier created by the Diablo Range, and (3) the inland

boundary of the coastal marine influence. These factors lead

to significant temperature, humidity and precipitation differences

between the areas east and west of the eastern boundary.

The southern boundary matches those of the Santa Cruz and

Santa Clara viticultural areas. As discussed in the section on

climate, the San Francisco Bay influence is diminished and the

Monterey Bay influence is felt south of the "San Francisco

Bay" viticultural area. The regional northwestern prevailing

wind flow direction generally prevents the Monterey Bay influence

from affecting the climate in the viticultural area.

Monterey Bay has a very broad mouth with high mountain ranges

to both the north and south. Fog and ocean air traveling along

the Pajaro River do on rare occasions reach the south end of

the Santa Clara Valley to the north, but most of the Monterey

Bay influence travels to the east and south (borne by the prevailing

northwest wind) into the Salinas Valley and up against the eastern

coastal hills.

Coast climate thus gradually warms with increased distance

from the San Francisco Bay, as air traveling over land areas

south of the bay accumulates heat and dries out. The warming

trend reverses, however, at the point where the south end of

the Santa Clara Valley meets the Pajaro River. Here wind and

fog from the Monterey Bay, flowing westward through the Pajaro

River gap, begins to assert a cooling influence.

The decrease of San Francisco Bay influence, and the concurrent

increase of Monterey Bay influence, is demonstrated by the difference

in heat summation between Gilroy and Hollister. Central Coast

sites warm with increasing distance from the San Francisco Bay,

but this pattern reverses at the southern boundary of the Santa

Clara Valley viticultural area, between Gilroy and Hollister,

as the influence of the Monterey Bay becomes dominant. This produces

significantly cooler temperatures in Hollister than in Gilroy,

even though Hollister is farther from San Francisco Bay.

Petition Table 2 "Decrease in San Francisco Bay Influence,"

indicates a

gradual warming trend as one travels southward from the San

Francisco Bay. Past Gilroy to Hollister, however, a new cooling

trend is observed due to the influence of the Monterey Bay.

Hollister is significantly cooler than Gilroy even though

its location is sheltered by hills from the full influence of

Monterey Bay. The weather station near coastal Monterey shows

the strongest cooling from the Monterey Bay. Continuing south

in the Salinas Valley, the climate again grows warmer with increasing

distance from Monterey Bay.

In summary, the southern boundary of the "San Francisco

Bay" viticultural area has been defined to match the southern

boundary of the Santa Clara Valley and Santa Cruz viticultural

areas because this is the location of the transition from a climate

dominated by flow from the San Francisco Bay to one dominated

by flow from Monterey Bay.

The western boundary of the "San Francisco Bay"

viticultural area follows the Pacific coastline from San Francisco

south to just north of the City of Santa Cruz. This area is greatly

influenced by Pacific Ocean breezes and fog. The western hills

of the Santa Cruz Mountains are exposed to the strong prevailing

northwest winds. The climate of the eastern portion of these

hills is affected by the moderating influences of the San Francisco

Bay.

Just north of the City of Santa Cruz, the western boundary

turns east excluding a small portion of Santa Cruz County from

the viticultural area, as it was from the Santa Cruz Mountains

viticultural area. The Santa Cruz Mountains viticultural area

has been excluded from the "San Francisco Bay" viticultural

area as discussed above. The area around Santa Cruz and Watsonville

is close to sea level, and is sheltered from the prevailing northwesterly

Pacific Ocean winds by the Santa Cruz mountains. Therefore, fog

and bay breezes from Monterey Bay impact the area, while the

San Francisco Bay does not influence the area.

Thus, the main determinant of the western boundary of the

proposed viticultural area includes the (1) natural geography

of the coastline, (2) Pacific Ocean and San Francisco Bay influence,

and (3) historical identity as part of the San Francisco Bay

Area.

 

Topography

 

The weather in the bay region is a product of the modification

of the onshore marine air masses described above by the topography

of the coast ranges, a double chain of mountains running north-northwest

to south-southeast. Each chain divides into two or more smaller

chains, creating a patchwork of valleys.

As the elevation of the western chain of the coastal ridge

is generally higher than the altitude of the inversion base,

the inversion acts as a lid to prevent the cool onshore flowing

marine air and fog from rising over the mountains and flowing

inland. Because of this, successive inland valleys generally

have less of a damp, seacoast climate and more of a dry, continental

climate.

This pattern is modified by a few gaps and passes in the mountain

ranges that allow marine influences to spread farther inland

without obstruction. These inland areas are, however, somewhat

protected from the Pacific fogs, which are evaporated as the

flow is warmed by passage over the warmer land surfaces.

The three largest sea level gaps in the central California

coastal range mountainous barrier are (north to south): Estero

Lowland in Sonoma, Golden Gate into San Francisco Bay, and Monterey

Bay. Several smaller mountain pass gaps (San Bruno and Crystal

Springs) sometimes also allow for the inland spread of coastal

climate in the Bay Area when the elevated inversion base is high

enough.

The Bay Area climate is greatly modified by San Francisco

Bay, whose influence is similar to that of the ocean, i.e.,

it cools summer high temperatures and warms winter low temperatures.

The narrowness of the Golden Gate limits the exchange of bay

and ocean waters, and thus Bay waters are not quite as cold as

the coastal ocean currents during the summer.

Marine air exits the San Francisco Bay (without having experienced

the normal drying and heating effects associated with over-land

travel) in several directions. The predominant outflow is carried

by the onshore northwesterly winds toward the south through the

Santa Clara Valley to Morgan Hill and to the east via the Hayward

Pass and Niles Canyon.

Temperatures at given locations in the Bay Area are thus dependent

on streamline distance (actual distance traveled) from the ocean,

rather than its "as the crow flies" distance from the

ocean. Livermore Valley temperatures show this phenomenon. Ocean

air flows across San Francisco Bay, through the Hayward Pass

and Niles Canyon, and into the Livermore Valley, causing a cooling

effect in summer and a warming effect in winter.

In summary, because of the interaction of topography with

the prevailing winds in the Bay Area, the Pacific Ocean and San

Francisco Bay are the major climatic influences in the "San

Francisco Bay" viticultural area. This interaction has two

principal effects: (1) to allow the coastal influence of the

Pacific Ocean to extend farther east than otherwise possible,

and (2) to modify that coastal influence because of the moderating

effects of Bay waters on surrounding weather.

 

Boundaries

 

In the original proposal, a small part of the east end of

the Livermore Valley was omitted. This newly described area most

accurately completes the description and designation of the climatic

and geographic zones for Livermore Valley and has been added

to the new "San Francisco Bay" viticultural area by

ATF. This area adds less than three square miles to the viticultural

area and approximately 350 acres of wine grapes.

 

Amendment of the Boundaries of the Central Coast Viticultural

Area

 

In conjunction with establishing the "San Francisco Bay"

viticultural area, ATF is amending the boundaries of the Central

Coast viticultural area to encompass the "San Francisco

Bay" viticultural area as proposed by the petitioners and

discussed in Notice No. 856.

An examination of the three large viticultural areas on the

California coast reveals a gap between Monterey and Marin, where

many acres of existing and potential vineyards are not represented

by any viticultural area. The revised Central Coast viticultural

area continues the logical pattern already established in the

organization of viticultural areas on the California coast. The

expanded Central Coast viticultural area is a larger area that

ties together several smaller sub-appellations (Santa Clara Valley,

Ben Lomond Mountain, Livermore Valley, San Ysidro District, Pacheco

Pass, San Benito, Cienega Valley, Mount Harlan, Paicines, Lime

Kiln Valley, Monterey, Carmel Valley, Chalone, Arroyo Seco, Paso

Robles, York Mountain, Edna Valley, Arroyo Grande Valley, Santa

Maria Valley, Santa Ynez Valley, and the "San Francisco

Bay" viticultural area), all of which are dominated by the

same geographic and general marine influences that create their

climate. The evidence presented in the petition establishes that

the well-known Central Coast name and the general marine climate

extend north and northwest beyond the previous Central Coast

boundaries.

 

The Name, Central Coast, as Referring to the Counties Surrounding

San Francisco Bay

 

The name Central Coast, as used by wine writers and the state

legislature, extends north and west into Santa Cruz County and

five counties that surround the San Francisco Bay, beyond the

area previously recognized as the Central Coast viticultural

area. In support of this, are the following references.

Patrick W. Fegan’s book Vineyards and Wineries of

America, contains a map of "Central Coastal Counties"

designating Contra Costa, Alameda, San Mateo, Santa Clara, Santa

Cruz, Monterey, San Benito, San Luis Obispo and Santa Barbara.

Another example is Central Coast Wine Tour, published

by Vintage Image in 1977 and 1980, which covers the area from

San Francisco to Santa Barbara and specifically describes past

and present wineries in San Francisco, Alameda, Contra Costa,

Santa Clara, San Mateo and Santa Cruz Counties.

The Connoisseurs’ Handbook of California Wines

defines "Central Coast" in the section entitled "Wine

Geography" as: "The territory lying south of San Francisco

and north of the city of Santa Barbara--San Mateo, Santa Cruz,

Santa Clara, San Benito, Monterey, San Luis Obispo, and Santa

Barbara Counties."

Bob Thompson and Hugh Johnson, in their book The California

Wine Book, describe the "Central Coast" as an indeterminate

area between San Francisco and Santa Barbara, including San Francisco,

Contra Costa, Alameda, Monterey, Santa Clara and Santa Cruz Counties.

In Wines of California, by Robert Balzer, the wine

producing areas on the California coast are categorized into

three groups: North Coast counties, Bay Area and Central Coast

counties, and South Central Coast counties. The section on "Bay

Area and Central Coast" features a map, included with the

petition, illustrating the counties surrounding San Francisco

Bay. Finally, a vineyard and winery map published by Sally Taylor

and Friends in the 1980’s includes Santa Cruz County on

the map entitled "North Central Coast."

In addition to the numerous viticultural writings, government

and scholarly studies on the climate and geography of the California

Central Coast also include the counties around the San Francisco

Bay in the area.

The historic San Francisco Viticultural District in 1880 grouped

the counties of San Francisco, San Mateo, Alameda, Santa Clara,

Santa Cruz and Contra Costa together. The 1930 University of

California monograph "Summer Sea Fogs of the Central California

Coast" by Horace R. Byers focuses on an area "from

Point Sur to the entrance of Tomales Bay, including San Francisco

and Monterey Bays: Santa Clara, San Ramon, Livermore, San Benito,

and Salinas valleys...." These valleys are located in Santa

Clara, Contra Costa, Alameda, San Benito and Monterey Counties,

respectively.

Section 25236 of the 1955 California Alcoholic Beverage Control

Act allowed the use of the description "central coastal

counties dry wine" on wine originating in several counties

including Santa Clara, Santa Cruz, Alameda, Contra Costa, Monterey,

San Luis Obispo Counties. While "central coastal counties"

is not a recognized viticultural area under the Federal Alcohol

Administration Act, this law is mentioned solely to support the

fact that the counties surrounding San Francisco Bay have been

accepted in California as belonging within the place name "Central

Coast."

The California Division of Forestry’s "Sea Breeze

Effects on Forest Fire Behavior in Central Coastal California"

summarizes the results of several fireclimate surveys conducted

in the 1960’s in several counties surrounding San Francisco

Bay. Currently, the National Oceanic and Atmospheric Administration/

National Climatic Data Center publishes monthly summaries of

climatological data grouped into geographical divisions. The

"Central Coast Drainage" division includes locations

in San Francisco, Alameda, Contra Costa, San Mateo, Santa Clara,

Santa Cruz, Monterey and San Luis Obispo Counties.

The sources discussed above demonstrate that the counties

included in the revised Central Coast boundaries are commonly

and historically known as being within the place-name "Central

Coast."

The Santa Cruz Mountains viticultural area has been excluded

from the revised Central Coast viticultural area for the same

reasons cited above for excluding it from the "San Francisco

Bay" viticultural area.

 

Evidence Relating to the Geographical Features (Climate,

Soil, Elevation, Physical Features, etc.) Which Distinguish the

Viticultural Features of the Area from Surrounding Areas

 

Coastal Climate and Marine Influence

 

The coastal climate of the Central Coast viticultural area

is the principal feature which unifies the area and distinguishes

it from surrounding areas. An indication of the "coastal

climate" effect on the area is the difference between July

and September temperatures. September (fall) is usually warmer

than July (summer) in coastal areas, while the reverse is true

in continental areas. This unique coastal characteristic results

from two factors: fogs and air flows. Fogs keep summer coastal

temperatures low while the interior regions absorb all of the

sun’s summer energy. These fogs diminish in strength and

frequency in the fall allowing more coastal solar gain and the

resultant temperature rise, while interior temperatures begin

their relative decline. This seasonal fluctuation comes about

when, (1) the pressure differential between the Pacific high

and the Central Valley is reduced which eliminates the inversion

cap over the coast ranges, and (2) the temperature of the Pacific

Ocean reaches its highest level in the fall which reduces the

cooling of onshore air flows. These air flows from the Pacific

Ocean invade the land mass through gaps in the coast range. Thus,

a location’s climate is dictated primarily by its position

relative to the windstream distance from the Pacific - the greater

the windstream distance the greater the July/October temperature

differential and the greater the degree day accumulation as the

windstream will be increasingly warmed by the ground it passes

over.

Table 1 in the petition lists California cities in windstream

groups from the most coastal (initiation) to the most continental

(terminus). This table lists the difference (in degrees) between

the average July and September temperatures in each city, which

constitutes the measure of "coastal" character. Continental

cities (Antioch to Madera), which are outside the previous and

revised boundaries of the Central Coast, exhibit the highest

July temperatures and the greatest difference in temperature

from July to September. Also, included are accumulated degree-days

for April through October following Winkler’s system. This

chart demonstrates that within the coastal region - north and

south - there is a continuum of coastal influence and the ensuing

heat gradient during the growing season (degree-days).

Within the extension, the climate acts in an identical manner

to the area in the previous Central Coast viticultural area.

This claim is supported by Table I, demonstrating that locations

within the revision to the Central Coast viticultural area (San

Francisco, Richmond, Oakland, Berkeley, Half Moon Bay, Martinez,

San Jose, Ben Lomond, Palo Alto) share the same coastal character

(i.e., (1) higher September temperatures, and (2) an airstream

continuum of degree-day temperatures correlated with the airstream

distance from the Pacific Ocean) as found at the current Central

Coast cities (Monterey, Salinas, Hollister, King City, Livermore,

Gilroy). A Coastal Character Map showing this data was attached

to the petition. Accordingly, the data presented above establishes

that the Central Coast boundary should be revised to accurately

reflect the extent of the Central Coast climate.

The "San Francisco Bay" viticultural area and the

Central Coast viticultural area lie within the same botanic zone

according to the Sunset Western Garden Book published

for 55 years by the editors of Sunset Magazine. This comprehensive

western plant encyclopedia has become a leading authority regarding

gardening in the western United States. The Western Garden

Book divides the region from the Pacific Coast to the eastern

slope of the Rocky Mountains into twenty-four climate zones.

The Central Coast viticultural area lies within Zones 7, 14,

15, 16, and 17.

The climate zones established by Sunset Magazine demonstrate

that the main distinguishing feature of Central Coast - the coastal

climate - extends west to the Santa Cruz coastline and north

to the Golden Gate. The revision to the Central Coast viticultural

area also lies within these zones.

The characteristic cool Mediterranean climate of the Central

Coast viticultural area extends north and west of the current

boundaries. This coastal Mediterranean climate is cool in the

summer and the marine fog which penetrates inland makes the coast

very oceanic, with little difference in temperature between mild

winters and cool summers. The Mediterranean climate classification

is so called because the lands of the Mediterranean Basin exhibit

the archetypical temperature and rainfall regimes that define

the class. The Climatic Regions Map from Atlas of California

supports the Mediterranean climate claim. This map is based on

the Koeppen classification, which divides the world into climate

regions based on temperature, the seasonal variation of drought,

and the relationship of rainfall to potential evaporation. The

Koeppen system uses letters based on German words having no direct

English equivalents. The Climatic Regions Map depicts the extent

of cool Mediterranean climate both north and west of the current

Central Coast boundary and within it.

The map shows that Alameda, Contra Costa, Santa Clara, San

Mateo, and Santa Cruz Counties in the revision to the Central

Coast viticultural area, like Monterey, San Benito, San Luis

Obispo, and Santa Barbara Counties in the current Central Coast

viticultural area, are mostly classified as Csb Mediterranean

climates (average of warmest month is less than 22 C), with partial

Csbn climate (more than thirty days of fog) along the coast.

It is due to this coastal climate (mainly fog and wind), that

the degree of marine influence in the revised Central Coast viticultural

area is similar to the degree of marine influence found at other

places inside the previous boundaries of the Central Coast viticultural

area. A map of central California, submitted with the petition,

shows the extent of marine fog in the area. This map shows that

the fog pattern in the revised viticultural area is similar to

other areas included in Central Coast. The fog extends inland

to approximately the same extent throughout the revised viticultural

area. The "Retreat of Fog" map submitted with the petition

also shows the similarity in the duration of fog in the previous

and revised Central Coast viticultural area. The similar fog

pattern is most evident along the coastal areas of Big Sur, Monterey

Bay and San Francisco.

 

Topography

 

Santa Cruz and the other San Francisco Bay Counties share

the Central Coast’s terrain. One of the major California

coast range gaps which produces the climate within the previous

Central Coast boundaries lies within the revision to the Central

Coast. The three largest sea level gaps in the central California

coastal range mountainous barrier are (north to south): Estero

Lowland in Sonoma County, Golden Gate into San Francisco Bay,

and Monterey Bay. The Golden Gate and Monterey Bay allow the

ocean influence to enter into the previous Central Coast viticultural

area creating its coastal climate which is the unifying and distinguishing

feature of the area. The main gap in the previous Central Coast

viticultural area, the Monterey Bay allows marine air and fog

from the Pacific Ocean to travel south and inland, into the Salinas

Valley. This feature creates the grape-growing climate that exists

in the Salinas Valley, but from a meteorological perspective,

it has comparatively little influence on the portion of Central

Coast viticultural area lying north of it. The on-shore prevailing

North-Westerly flow direction, combined with the coastal range

topographical features north of the Bay’s mouth, minimize

northward influence from the air that enters the Monterey Bay.

The Golden Gate gap introduces a cooling marine influence and

the San Francisco Bay allows marine air and fog to travel much

further inland and south through the Santa Clara and Livermore

Valleys and provides most of the coastal influence affecting

the northern portion of the Central Coast viticultural area.

Although the Golden Gate and San Francisco Bay are primary

influences on the previous Central Coast climate, neither shoreline

was included in the previous Central Coast boundary. The revision

to the Central Coast viticultural area logically extends the

previous Central Coast boundaries to include the shores of the

Golden Gate and San Francisco Bay.

 

Boundaries

 

The extension of the Central Coast viticultural area would

include the currently excluded portions of five counties which

border the San Francisco Bay. These counties are San Francisco,

San Mateo, Santa Clara, Alameda, Contra Costa, and all of Santa

Cruz County with the exception of the Santa Cruz Mountains viticultural

area. The "San Francisco Bay" viticultural area adds

approximately 639 square miles to Central Coast. This area contains

2,827 acres planted to grapes. In the original proposal, a small

part of the east end of the Livermore Valley was omitted. This

newly described area most accurately completes the description

and designation of the climatic and geographic zones for Livermore

Valley and has been added to the revised Central Coast viticultural

area. This area adds less than three square miles to the viticultural

area and approximately 350 acres of wine grapes.

The revision to the Central Coast boundary follows the Pacific

coastlines of Santa Cruz, San Mateo, and San Francisco Counties,

crosses San Francisco Bay, follows the northern boundary of Contra

Costa County to Concord, and then follows the inland boundary

of coastal influence along straight lines between landmarks in

the Diablo Mountain Range to the current Central Coast boundary.

The southern boundary of the Central Coast viticultural area

remains unchanged. The changes to the western boundary, the California

coastline, consists of extending the boundary north to the Golden

Gate. The eastern boundary is extended to include the area northwest

of Livermore up to the San Pablo Bay. From Altamont (just east

of Livermore) south, the eastern boundary follows the previous

boundary of the Central Coast viticultural area. North of Altamont,

the boundary extension excludes the easternmost range of coastal

mountains. The eastern boundary includes Martinez and Concord,

but excludes Antioch, and the eastern portion of Contra Costa

County.

 

Paperwork Reduction Act

 

The provisions of the Paperwork Reduction Act of 1995, 44

U.S.C. Chapter 35, and its implementing regulations, 5 C.F.R.

Part 1320, do not apply to this final rule because there is no

requirement to collect information.

 

Regulatory Flexibility Act

 

It is hereby certified that this regulation will not have

a significant impact on a substantial number of small entities.

The establishment of a viticultural area is neither an endorsement

nor approval by ATF of the quality of wine produced in the area,

but rather an identification of an area that is distinct from

surrounding areas. ATF believes that the establishment of viticultural

areas merely allows wineries to more accurately describe the

origin of their wines to consumers, and helps consumers identify

the wines they purchase. Thus, 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 that region.

No new requirements are proposed. Accordingly, a regulatory

flexibility analysis is not required.

 

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.

 

Drafting Information

 

The principal author of this document is David W. Brokaw,

Regulations Division, Bureau of Alcohol, Tobacco and Firearms.

 

List of Subjects in 27 CFR Part 9

 

Administrative practice and procedure, 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

 

Par. 2. Section 9.75 is amended by revising paragraph

(b) to add 23 U.S.G.S. Quadrangle 7.5 Minute Series (Topographic)

maps (19) through (41), by revising paragraph (c) to add three

counties, by removing paragraphs (c)(2) through (c)(13) and replacing

them with new paragraphs (c)(2) through (c)(16) and, renumbering

existing paragraphs (c)(14) through (c)(40) as paragraphs (c)(17)

through (c)(43).

 

Subpart C--Approved American Viticultural Areas

 

* * * * *

 

§ 9.75 Central Coast

 

(a) Name. * * *

(b) Approved maps. * * *

 

* * * * *

 

(19) Diablo, California, scale 1:24,000, dated 1953, Photorevised

1980

(20) Clayton, California, scale 1:24,000, dated 1953, Photorevised

1980

(21) Honker Bay, California, scale 1:24,000, dated 1953, Photorevised

1980

(22) Vine Hill, California, scale 1:24,000, dated 1959, Photorevised

1980

(23) Benicia, California, scale 1:24,000, dated 1959, Photorevised

1980

(24) Mare Island, California, scale 1:24,000, dated 1959,

Photorevised 1980

(25) Richmond, California, scale 1:24,000, dated 1959, Photorevised

1980

(26) San Quentin, California, scale 1:24,000, dated 1959,

Photorevised 1980

(27) Oakland West, California, scale 1:24,000, dated 1959,

Photorevised 1980

    (28) San Francisco North, California, scale 1:24,000, dated

    1956, Photorevised 1968 and 1973

(29) San Francisco South, California, scale 1:24,000, dated

1956, Photorevised 1980

(30) Montara Mountain, California, scale 1:24,000, dated 1956,

Photorevised 1980

    (31) Half Moon Bay, California, scale 1:24,000, dated 1961,

    Photoinspected 1978, Photorevised 1968 and 1973

    (32) San Gregorio, California, scale 1:24,000, dated 1961,

    Photoinspected 1978, Photorevised 1968

(33) Pigeon Point, California, scale 1:24,000, dated 1955,

Photorevised 1968

(34) Franklin Point, California, scale 1:24,000, dated 1955,

Photorevised 1968

(35) Año Nuevo, California, scale 1:24,000, dated 1955,

Photorevised 1968

(36) Davenport, California, scale 1:24,000, dated 1955, Photorevised

1968

(37) Santa Cruz, California, scale 1:24,000, dated 1954, Photorevised

1981

(38) Felton, California, scale 1:24,000, dated 1955, Photorevised

1980

    (39) Laurel, California, scale 1:24,000, dated 1955 , Photoinspected

    1978, Photorevised 1968

(40) Soquel, California, scale 1:24,000, dated 1954, Photorevised

1980

(41) Watsonville West, California, scale 1:24,000, dated 1954,

Photorevised 1980.

(c) Boundary. The Central Coast viticultural area is

located in the following California counties: Monterey, Santa

Cruz, Santa Clara, Alameda, San Benito, San Luis Obispo, Santa

Barbara, San Francisco, San Mateo, and Contra Costa. The Santa

Cruz Mountains viticultural area is excluded. (The boundaries

of the Santa Cruz Mountains viticultural area are described in

27 C.F.R. §9.31.) * * *

 

* * * * *

 

(2) The boundary follows north along the shoreline of the

Pacific Ocean (across the Watsonville West, Soquel, Santa Cruz,

Davenport, Año Nuevo, Franklin Point, Pigeon Point, San

Gregorio, Half Moon Bay, Montara Mountain and San Francisco South

maps) to the San Francisco/Oakland Bay Bridge. (San Francisco

North Quadrangle)

(3) From this point, the boundary proceeds east on the San

Francisco/Oakland Bay Bridge to the Alameda County shoreline.

(Oakland West Quadrangle)

(4) From this point, the boundary proceeds east along the

shoreline of Alameda County and Contra Costa County across the

Richmond, San Quentin, Mare Island, and Benicia maps to a point

marked BM 15 on the shoreline of Contra Costa County. (Vine Hill

Quadrangle)

(5) From this point, the boundary proceeds in a southeasterly

direction in a straight line across the Honker Bay map to Mulligan

Hill elevation 1,438. (Clayton Quadrangle)

(6) The boundary proceeds in southeasterly direction in a

straight line to Mt. Diablo elevation 3,849. (Clayton Quadrangle)

(7) The boundary proceeds in a southeasterly direction in

a straight line across the Diablo and Tassajara maps to Brushy

Peak elevation 1,702. (Byron Hot Springs Quadrangle)

(8) The boundary proceeds due south, approximately 400 feet,

to the northern boundaries of Section 13, Township 2 South, Range

2 East. (Byron Hot Springs Quadrangle)

(9) The boundary proceeds due east along the northern boundaries

of Section 13 and Section 18, Township 2 South, Range 3 East,

to the northeast corner of Section 18. (Byron Hot Springs Quadrangle)

(10) Then proceed south along the eastern boundaries of Sections

18, 19, 30, and 31 in Township 2 South, Range 3 East to the southeast

corner of Section 31. (Byron Hot Springs Quadrangle)

(11) Then proceed east along the southern border of Section

32, Township 2 South, Range 3 East to the northwest corner of

Section 4. (Altamont Quadrangle)

(12)Then proceed south along the western border of Sections

4 and 9. (Altamont Quadrangle)

(13) Then proceed south along the western border of Section

16 approximately 4275 feet to the point where the 1100 meter

elevation contour intersects the western border of Section 16.

(Altamont Quadrangle)

(14) Then proceed in a southeasterly direction along the 1100

meter elevation contour to the intersection of the southern border

of Section 21 with the 1100 meter elevation contour. (Altamont

Quadrangle)

(15) Then proceed west to the southwest corner of Section

20. (Altamont Quadrangle)

(16) Then proceed south along the western boundaries of Sections

29 and 32, Township 3 South, Range 3 East and then south along

the western boundaries of Sections 5, 8, 17, 20, Township 4 South,

Range 3 East to the southwest corner of Section 20. (Mendenhall

Springs Quadrangle)

 

* * * * *

 

Par. 3. The table of sections in subpart C is amended

by adding § 9.157 to read as follows:

 

* * * * *

 

9.157 San Francisco Bay

 

Par. 4. Subpart C is amended by adding § 9.157

to read as follows:

 

Subpart C--Approved American Viticultural Areas

 

* * * * *

 

§ 9.157 San Francisco Bay

 

(a) Name. The name of the viticultural area described

in this section is "San Francisco Bay."

(b) Approved maps. The appropriate maps for determining

the boundary of the San Francisco Bay viticultural area are forty-two

U.S.G.S. Quadrangle 7.5 Minute Series (Topographic) maps and

one U.S.G.S. Quadrangle 5 x 11 Minute (Topographic) map. They

are titled:

(1) Pacheco Peak, California, scale 1:24,000, dated 1955,

Photorevised 1971

(2) Gilroy Hot Springs, California, scale 1:24,000, dated

1955, Photoinspected 1978, Photorevised 1971

(3) Mt. Sizer, California, scale 1:24,000, dated 1955, Photoinspected

1978, Photorevised 1971

(4) Morgan Hill, California, scale 1:24,000, dated 1955, Photorevised

1980

(5) Lick Observatory, California, scale 1:24,000, dated 1955,

Photoinspected 1973, Photorevised 1968

(6) San Jose East, California, scale 1:24,000, dated 1961,

Photorevised 1980

(7) Calaveras Reservoir, California, scale 1:24,000, dated

1961, Photorevised 1980

(8) La Costa Valley, California, scale 1:24,000, dated 1960,

Photorevised 1968

(9) Mendenhall Springs, California, scale 1:24,000, dated

1956, Photoinspected 1978, Photorevised 1971

(10) Altamont, California, scale 1:24,000, dated 1953, Photorevised

1981

(11) Byron Hot Springs, California, scale 1:24,000, dated

1953, Photorevised 1968

(12) Tassajara, California, scale 1:24,000, dated 1953, Photoinspected

1974, Photorevised 1968

(13) Diablo, California, scale 1:24,000, dated 1953, Photorevised

1980

(14) Clayton, California, scale 1:24,000, dated 1953, Photorevised

1980

(15) Honker Bay, California, scale 1:24,000, dated 1953, Photorevised

1980

(16) Vine Hill, California, scale 1:24,000, dated 1959, Photorevised

1980

(17) Benicia, California, scale 1:24,000, dated 1959, Photorevised

1980

(18) Mare Island, California, scale 1:24,000, dated 1959,

Photorevised 1980

(19) Richmond, California, scale 1:24,000, dated 1959, Photorevised

1980

(20) San Quentin, California, scale 1:24,000, dated 1959,

Photorevised 1980

(21) Oakland West, California, scale 1:24,000, dated 1959,

Photorevised 1980

(22) San Francisco North, California, scale 1:24,000, dated

1956, Photorevised 1968 and 1973

(23) San Francisco South, California, scale 1:24,000, dated

1956, Photorevised 1980

(24) Montara Mountain, California, scale 1:24,000, dated 1956,

Photorevised 1980

(25) Half Moon Bay, California, scale 1:24,000, dated 1961,

Photoinspected 1978, Photorevised 1968 and 1973

(26) San Gregorio, California, scale 1:24,000, dated 1961,

Photoinspected 1978, Photorevised 1968

(27) Pigeon Point, California, scale 1:24,000, dated 1955,

Photorevised 1968

(28) Franklin Point, California, scale 1:24,000, dated 1955,

Photorevised 1968

(29) Año Nuevo, California, scale 1:24,000, dated 1955,

Photorevised 1968

(30) Davenport, California, scale 1:24,000, dated 1955, Photorevised

1968

(31) Santa Cruz, California, scale 1:24,000, dated 1954, Photorevised

1981

(32) Felton, California, scale 1:24,000, dated 1955, Photorevised

1980

(33) Laurel, California, scale 1:24,000, dated 1955, Photoinspected

1978, Photorevised 1968

(34) Soquel, California, scale 1:24,000, dated 1954, Photorevised

1980

(35) Watsonville West, California, scale 1:24,000, dated 1954,

Photorevised 1980

(36) Loma Prieta, California, scale 1:24,000, dated 1955,

Photoinspected 1978, Photorevised 1968

(37) Watsonville East, California, scale 1:24,000, dated 1955,

Photorevised 1980

(38) Mt. Madonna, California, scale 1:24,000, dated 1955,

Photorevised 1980

(39) Gilroy, California, scale 1:24,000, dated 1955, Photorevised

1981

(40) Chittenden, California, scale 1:24,000, dated 1955, Photorevised

1980

(41) San Felipe, California, scale 1:24,000, dated 1955, Photorevised

1971

(42) Three Sisters, California, scale 1:24,000, dated 1954,

Photoinspected 1978, Photorevised 1971

(c) Boundary. The San Francisco Bay viticultural area

is located mainly within five counties which border the San Francisco

Bay and partly within two other counties in the State of California.

These counties are: San Francisco, San Mateo, Santa Clara, Alameda,

Contra Costa and partly in Santa Cruz and San Benito Counties.

The Santa Cruz Mountains viticultural area is excluded (see 27 C.F.R.

§9.31.) The boundaries of the San Francisco Bay viticultural

area, using landmarks and points of reference found on appropriate

U.S.G.S. maps, are as follows:

(1) Beginning at the intersection of the 37 degree 00’

North latitude parallel with State Route 152 on the Pacheco Peak

Quadrangle.

(2) Then proceed in a northwesterly direction in a straight

line to the intersection of Coyote Creek with the township line

dividing Township 9 South from Township 10 South on the Gilroy

Hot Springs Quadrangle.

(3) Then proceed in a northwesterly direction in a straight

line to the intersection of the township line dividing Township

8 South from Township 9 South with the range line dividing Range

3 East from Range 4 East on the Mt. Sizer Quadrangle.

(4) Then proceed in a northwesterly direction in a straight

line (across the Morgan Hill Quadrangle) to the intersection

of the township line dividing Township 7 South from Township

8 South with the range line dividing Range 2 East from Range

3 East on the Lick Observatory Quadrangle.

(5) Then proceed in a northwesterly direction in a straight

line to the intersection of State Route 130 with the township

line dividing Township 6 South from Township 7 South on the San

Jose East Quadrangle.

(6) Then proceed in a northeasterly direction following State

Route 130 to its intersection with the range line dividing Range

1 East from Range 2 East on the Calaveras Reservoir Quadrangle.

(7) Then proceed north following this range line to its intersection

with the Hetch Hetchy Aqueduct on the La Costa Valley Quadrangle.

(8) Then proceed in a northeasterly direction in a straight

line following the Hetch Hetchy Aqueduct to the western boundary

of Section 14 in Township 4 South, Range 2 East on the Mendenhall

Springs Quadrangle.

(9) Then proceed south along the western boundary of Section

14 in Township 4 South, Range 2 East to the southwest corner

of Section 14 on the Mendenhall Springs Quadrangle.

(10) Then proceed east along the southern boundary of Section

14 in Township 4 South, Range 2 East to the southeast corner

of Section 14 on the Mendenhall Springs Quadrangle.

(11) Then proceed south along the western boundary of Section

24 in Township 4 South, Range 2 East to the southwest corner

of Section 24 on the Mendenhall Springs Quadrangle.

(12) Then proceed east along the southern boundary of Section

24 in Township 4 South, Range 2 East and Section 19 in Township

4 South, Range 3 East to the southeast corner of Section 19 on

the Mendenhall Springs Quadrangle.

(13) Then proceed north along the western boundaries of Sections

20, 17, 8, and 5 on the Mendenhall Springs Quadrangle in Township

4 South, Range 3 East, north (across the Altamont Quadrangle)

along the western boundaries of Sections 32, 29, to the southwest

corner of Section 20, in Township 3 South, Range 3 East.

(14) Then east along the southern boundary of Sections 20,

and 21, in Township 3 South, Range 3 East on the Altamont Quadrangle

to the 1100 meter elevation contour.

(15) Then, along the 1100 meter contour in a northwesterly

direction to the intersection with the western boundary of Section

16, Township 3 South, Range 3 East on the Altamont Quadrangle.

(16) Then north along the eastern boundary of Sections 17,

8, and 5 in Township 3 South, Range 3 East to the northeast corner

of Section 5.

(17) Then proceed west along the northern border of Section

5 to the northwest corner of Section 5.

(18) Then north along the eastern boundaries of Sections 31,

30, 19, and 18 in Township 2 South, Range 3 East to the northeast

corner of Section 18 on the Byron Hot Springs Quadrangle.

(19) Then proceed due west along the northern boundaries of

Section 18 and Section 13 (Township 2 South, Range 2 East) to

a point approximately 400 feet due south of Brushy Peak on the

Byron Hot Springs Quadrangle.

(20) Then proceed due north to Brushy Peak (elevation 1,702)

on the Byron Hot Springs Quadrangle.

(21) Then proceed in a northwesterly direction in a straight

line (across the Tassajara and Diablo Quadrangles) to Mt. Diablo

(elevation 3,849) on the Clayton Quadrangle.

(22) Then proceed in a northwesterly direction in a straight

line to Mulligan Hill (elevation 1,438) on the Clayton Quadrangle.

(23) Then proceed in a northwesterly direction in a straight

line (across the Honker Bay Quadrangle) to a point marked BM

15 on the shoreline of Contra Costa County on the Vine Hill Quadrangle.

(24) Then proceed west along the shoreline of Contra Costa

County and Alameda County (across the Quadrangles of Benicia,

Mare Island, Richmond, and San Quentin) to the San Francisco/Oakland

Bay Bridge on the Oakland West Quadrangle.

(25) Then proceed west on the San Francisco/Oakland Bay Bridge

to the San Francisco County shoreline on the San Francisco North

Quadrangle.

(26) Then proceed along the San Francisco, San Mateo, and

Santa Cruz County shoreline (across the Quadrangles of San Francisco

South, Montara Mountain, Half Moon Bay, San Gregorio, Pigeon

Point, Franklin Point, Año Nuevo and Davenport) to the

place where Majors Creek flows into the Pacific Ocean on the

Santa Cruz Quadrangle.

(27) Then proceed northeasterly along Majors Creek to its

intersection with the 400 foot contour line on the Felton Quadrangle.

(28) Then proceed along the 400 foot contour line in a generally

easterly/northeasterly direction to its intersection with Bull

Creek on the Felton Quadrangle.

(29) Then proceed along Bull Creek to its intersection with

Highway 9 on the Felton Quadrangle.

(30) Then proceed along Highway 9 in a northerly direction

to its intersection with Felton Empire Road.

(31) Then proceed along Felton Empire Road in a westerly direction

to its intersection with the 400 foot contour line on the Felton

Quadrangle.

(32) Then proceed along the 400 foot contour line (across

the Laurel, Soquel, Watsonville West and Loma Prieta Quadrangles)

to its intersection with Highway 152 on the Watsonville East

Quadrangle.

(33) Then proceed along Highway 152 in a northeasterly direction

to its intersection with the 600 foot contour line just west

of Bodfish Creek on the Watsonville East Quadrangle.

(34) Then proceed in a generally east/southeasterly direction

along the 600 foot contour line (across the Mt. Madonna and Gilroy

Quadrangles), approximately 7.3 miles, to the first intersection

of the western section line of Section 30, Township 11 South,

Range 4 East on the Chittenden Quadrangle.

(35) Then proceed south along the section line approximately

1.9 miles to the south township line at Section 31, Township

11 South, Range 4 East on the Chittenden Quadrangle.

(36) Then proceed in an easterly direction along the township

line (across the San Felipe Quadrangle), approximately 12.4 miles

to the intersection of Township 11 South and Township 12 South

and Range 5 East and Range 6 East on the Three Sisters Quadrangle.

(37) Then proceed north along the Range 5 East and Range 6

East range line approximately 5.5 miles to Pacheco Creek on the

Pacheco Creek Quadrangle.

(38) Then proceed northeast along Pacheco Creek approximately

.5 mile to the beginning point.

 

Signed: November 19, 1998.

 

John W. Magaw,

Director

 

Approved: December 24, 1998.

 

John P. Simpson,

Deputy Assistant Secretary (Regulatory, Tariff and Trade

Enforcement)

 

[FR Doc. 99-1209 Filed 1-19-99; 8:45 am]

 

 

 

TITLE 27 ¾ ALCOHOL, TOBACCO

PRODUCTS AND FIREARMS ¾ CHAPTER

I ¾ BUREAU OF ALCOHOL, TOBACCO

AND FIREARMS,DEPARTMENT OF THE TREASURY

 

    TD ATF-408

27 CFR Part 9

 

    Chiles Valley Viticultural Area

AGENCY: Bureau of Alcohol, Tobacco and Firearms (ATF),

Treasury.

 

ACTION: Treasury decision, final rule.

 

SUMMARY: This Treasury decision will establish a viticultural

area in Napa County, California, to be known as "Chiles

Valley". This viticultural area is the result of a petition

submitted by Mr. Volker Eisele, owner of the Volker Eisele Vineyard

and Winery.

 

EFFECTIVE DATE: April 19, 1999.

 

FOR FURTHER INFORMATION CONTACT: Thomas B. Busey, Specialist,

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 definitive viticultural

areas. The regulations allow the name of an approved viticultural

area to be used as an appellation of origin on wine labels and

in wine advertisements.

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, the names

of which may be used as appellations of origin.

Section 4.25a(e)(1), Title 27, CFR, defines an American viticultural

area as a delimited grape-growing region distinguishable by geographic

features, the boundaries of which have been delineated in subpart

C of part 9.

Section 4.25a(e)(2), Title 27, CFR, outlines the procedure

for proposing an American viticultural area. Any interested person

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 characteristics

(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 (or copies) of the appropriate U.S.G.S. map(s)

with the proposed boundaries prominently marked.

 

    Petition

ATF received a petition from Mr. Volker Eisele, representing

the Chiles Valley District Committee proposing to establish a

new viticultural area in Napa County, California to be known

as "Chiles Valley District." The Chiles Valley viticultural

area is located entirely within the Napa Valley. The viticultural

area is located in the eastern portion of Napa Valley between

and on the same latitude as St. Helena and Rutherford. It contains

approximately 6,000 acres, of which 1,000 are planted to vineyards.

Four wineries are currently active within the viticultural area.

 

    Comments

A Notice of Proposed Rulemaking, Notice No. 858 (63 FR 13583)

was published in the Federal Register on March 20, 1998, requesting

comments from all interested persons concerning the proposed

viticultural area. Specific comments were requested on the use

of the term "District" as part of the viticultural

area name as proposed in the original petition. ATF noticed the

proposed area as "Chiles Valley" because ATF did not

find that the petitioner submitted sufficient evidence to support

the use of the term "District" with Chiles Valley.

Six comments were received in response to this notice. All six

comments favored the addition of "District" to the

viticultural

name, but no additional evidence was submitted to support

this change. The six comments only reiterated the petitioner's

original argument that the use of the term "District"

was important to distinguish the Chiles Valley from the larger

valley, in this case the Napa Valley. None of the comments added

any data or historical evidence for the use of the term "District"

in conjunction with Chiles Valley.

 

    Evidence That the Name of the Area Is Locally or Nationally

    Known

An historical survey written by Charles Sullivan spells out

the historical use of the name Chiles Valley and vineyard plantings

dating back to the late 1800's. Numerous references exist indicating

the general use of the name "Chiles Valley" to refer

to the petitioned area. The petitioner included copies of title

pages of various publications, guide and tour book references,

public and private phone book listings and Federal and State

agency maps, to illustrate the use of the name.

However, as noted above, ATF has found that neither the petitioner

nor the commenters have submitted sufficient evidence to support

the use of the term "District" with the name "Chiles

Valley."

 

Historical or Current Evidence That the Boundaries of the

Viticultural Area Are as Specified in the Petition

 

The petitioner provided evidence that the boundaries establish

a grape producing area with an identifiable character and quality,

based on climate, topography, and historical tradition. The historical

evidence can be dated to the mid 1800's with a land grant from

the Mexican government to Joseph Ballinger Chiles, whose name

the valley would later bear. The land grant was called Rancho

Catacula and these lands all lie within the proposed appellation

boundaries. The

boundaries of the land grant are still recognized on U.S.G.S.

maps of the area. A vineyard planting was one of the earliest

agricultural operations conducted. For the most part the boundaries

of the proposed area use the land grant (Rancho line) boundary

lines. This area includes virtually all lands that in any way

might be used for agricultural purposes. Beyond the Rancho line

are very steep slopes, which are mostly part of the serpentine

chaparral soil formation. Historically it is also fairly clear

that the land grant boundaries were drawn to include usable land

rather than the watershed, which, on all sides of the old Rancho

Catacula, is much further up the slopes. In sum, the boundaries

encompass an area of remarkable uniformity with respect to soils,

climate and elevation that produces a unique microclimate within

the Napa Valley.

 

Evidence Relating to the Geographical Features (Climate,

Soil, Elevation, Physical Features, etc.) Which Distinguish Viticultural

Features of the Proposed Area From Surrounding Areas

 

The geographical features of the viticultural area set it

apart from the surrounding area in the Napa Valley and produce

a unique microclimate. The lands within the proposed boundaries

generally lie between 800 and 1000 feet above sea level. The

valley runs northwest to southeast and is therefore an open funnel

for the prevailing northwesterly winds. This fairly constant

northwesterly flow produces substantial cooling during the day

and, in combination with the altitude, relatively dry air. During

the night, this drier air leads to more rapid cooling than in

most of the Napa Valley. In addition, the narrow valley is surrounded

by hills up to 2200 feet which concentrate the cooler air flowing

down the hillsides toward the valley floor where the vineyards

are located. Also, the relative distance from the San Pablo Bay

and the Pacific Ocean allows the summer fog to move in much later

than in the main Napa Valley. By the time the fog does reach

the Chiles Valley, the air temperatures have dropped much more

dramatically than in the Napa Valley, thereby causing much lower

temperatures during the night. Late fog ceiling, combined with

low minimums, cause a very slow heat buildup during the day,

again producing relatively cooler average temperatures than those

found in many places of the Napa Valley. Available data indicates

a "Region Two" according to the U.C. Davis climate

classification. The growing season starts later than in the Napa

Valley due to a colder winter with temperatures dropping below

20 degrees F. The high incidence of spring frost is another indication

of the generally cooler climate conditions.

In the areas immediately adjacent to the boundaries, the micro-climate

changes significantly. As one moves up the hillsides on either

side of Chiles Valley, the summer fog blanket gets thinner and

thinner and disappears altogether at approximately 1400 to 1500

feet elevation.

Since the cold air drains down into the Chiles Valley, the

night time temperatures are quite a bit higher on the steep slopes

than on the valley floor. In addition, the lack of fog allows

a much faster

temperature build up during the day, reaching the daily high

two to three hours earlier than on the valley floor. Not only

is the temperature drop at nightfall less, but also much more

gradual so that during a 24 hour period the heat summation is

substantially higher on the slopes than within the proposed boundaries.

In winter, the situation is reversed. Strong winds tend to chill

the uplands creating a cooler climate than on the valley floor.

Snowfall above 1400 feet has been observed many times. The microclimatic

limitations combined with enormous steepness and very poor soil

(serpentine, heavy sandstone formations, and shale out croppings)

create an abrupt change from the viticultural area to the areas

surrounding it. The Pope Valley to the north of the proposed

viticultural area is also significantly different. A combination

of a lower elevation valley floor and substantially higher mountains

on the western side causes the formation of inversion layers,

which result in substantially higher average temperatures during

the growing season and significantly lower ones in the winter.

In addition, the summer fog from the Pacific Ocean never reaches

the Pope Valley. The petitioner stated that the particular interplay

between climate and soil make for unique growing conditions in

the proposed area. The soils within the proposed appellation

are uncommonly well drained and of medium fertility. The overall

terrain gently slopes toward a series of creeks, which act as

natural drainage for surface as well as subterranean water. The

petitioner believes this is a good basis for high quality grapes.

Uniform elevation and relatively uniform soil make the proposed

viticultural area a clearly identifiable growing area. Almost

all vineyards lie between 800 and 1000 feet elevation. As a general

rule, the soils in the Chiles Valley all belong to the Tehama

Series: nearly level to gently slopping, well drained Silt loams

on flood plains and alluvial fans. The total planted acreage

in 1996 was roughly 1000 acres. The remaining plantable area

does not exceed 500 acres. This small size illuminates the petitioner's

goal of a well defined, specific appellation.

    Geographical Brand Names

A brand name of viticultural significance may not be used

unless the wine meets the appellation of origin requirements

for the geographical area named. See 27 CFR 4.39(i).Consequently,

establishment of this viticultural area would preclude the use

of the term "Chiles Valley" as a brand name for wine,

unless the wine can claim "Chiles Valley" as an appellation

of origin, or complies with one of the exceptions in the regulation.Proposed

Boundaries The boundaries of the Chiles Valley viticultural

area may be found on four 1:24,000 scale U.S.G.S. maps titled:

St. Helena, CA(1960); Rutherford, CA (1968); Chiles Valley, CA

(1980); and Yountville, CA (1968).Paperwork Reduction Act

The provisions of the Paperwork Reduction Act of 1995, (44 U.S.C.

3507(j)) and its implementing regulations, 5 C.F.R. part 1320,

do not apply to this rule because no requirement to collect information

is proposed.Regulatory Flexibility Act It is hereby certified

that this regulation will not have a significant impact on a

substantial number of small entities. The establishment of a

viticultural area is neither an endorsement nor approval by ATF

of the quality of wine produced in the area, but rather an identification

of an area that is distinct from surrounding areas. ATF believes

that the establishment of viticultural areas merely allows wineries

to more accurately describe the origin of their wines to consumers,

and helps consumers identify the wines they purchase. Thus, any

benefit derived from the use of a viticultural area name is the

result of the proprietor's own efforts and consumer acceptance

of wine from the region. Accordingly, a regulatory flexibility

analysis is not required. No new requirements are imposed.

 

    Executive Order 12866

It has been determined that this regulation is not a significant

regulatory action as defined by Executive Order 12866. Accordingly,

this proposal is not subject to the analysis required by this

executive order.Drafting Information The principal author

of this document is Thomas B. Busey, 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.

 

Par. 2. Subpart C is amended by adding Sec. 9.154 to

read as follows:

 

    Subpart C--Approved American Viticultural Areas

§ 9.154 Chiles Valley.

 

(a) Name. The name of the viticultural area described in this

section is "Chiles Valley."

(b) Approved maps. The appropriate maps for determining the

boundary of the Chiles Valley viticultural area are four 1:24,000

Scale U.S.G.S. topography maps. They are titled:

(1) St. Helena, CA 1960 photorevised 1980 (2) Rutherford,

CA 1951 photorevised 1968

(3) Chiles Valley, CA 1958 photorevised 1980

(4) Yountville, CA 1951 photorevised 1968

(c) Boundary. The Chiles Valley viticultural area is located

in the State of California, entirely within the Napa Valley viticultural

area. The boundaries of the Chiles Valley viticultural area,

using landmarks and points of reference found on appropriate

U.S.G.S. maps follow. The local names of roads are identified

by name. (1) Beginning on the St. Helena, CA quadrangle map at

the northernmost corner of Rancho Catacula in Section 34, Township

9 North (T9N), Range 5 West (R5W), Mount Diablo Base and Meridian

(MDBM); (2) Then in southwesterly direction along the Rancho

Catacula boundary line to its intersection with the Rancho La

Jota boundary line;

(3) Then in a south-southeasterly direction approximately

3,800 feet along the Rancho Catacula/Rancho La Jota boundary

line to the point where the Rancho Catacula boundary separates

from the common boundary with Rancho La Jota; (4) Then in a southeasterly

direction continuing along the Rancho Catacula boundary approximately

23,600 feet to a point of intersection, in the NE \1/4\ Sec.

19, T8N, R4W, on the Chiles Valley quadrangle map, with a county

road known locally as Chiles and Pope Valley Road; (5) Then in

a southwesterly direction along Chiles and Pope Valley Road to

a point where it first crosses an unnamed blueline stream in

the SE \1/4\ Section 19, T8N, R4W;

(6) Then following the unnamed stream in generally southeast

direction to its intersection with the 1200 foot contour;

(7) Then following the 1200 foot contour in a northeasterly

direction to a point of intersection with the Rancho Catacula

boundary in section 20, T8N, R4W;

(8) Then in a southeasterly direction along the Rancho Catcula

boundary approximately 17,500 feet to the southwest corner of

Rancho Catacula in section 34, T8N, R4W on the Yountville, CA,

quadrangle map;

(9) Then in a northeasterly direction along the Rancho Catacula

boundary approximately 650 feet to its intersection with the

1040 foot contour;

(10) Then along the 1040 foot contour in a generally east

and northeast direction to its intersection with the Rancho Catacula

boundary;

(11) Then in a northeasterly direction along the Rancho Catacula

boundary approximately 1100 feet to its intersection with the

1040 foot contour;

(12) Then along the 1040 foot contour in an easterly direction

and then in a northwesterly direction to its intersection of

the Rancho Catacula boundary;

(13) Then in a southwesterly direction along the Rancho Catacula

boundary approximately 300 feet to a point of intersection with

a line of high voltage power lines;

(14) Then in a westerly direction along the high voltage line

approximately 650 feet to its intersection with the 1000 foot

contour; (15) Then continuing along the 1000 foot contour in

a generally northwesterly direction to the point of intersection

with the first unnamed blueline stream; (16) Then along the unnamed

stream in a northerly direction to its point of intersection

with the 1200 foot contour;

(17) Then along the 1200 foot contour in a northwesterly direction

to its points of intersection with the Rancho Catacula boundary

in Section 35, T9N, R5W on the St. Helena, CA, quadrangle map;

(18) Then along the Rancho Catacula boundary in a northwesterly

direction approximately 5,350 feet to a northernmost corner of

Rancho Catacula, the beginning point on the St. Helena quadrangle

map a the northernmost corner of Rancho Catacula in Section 34,

T9N, R5W, MDBM. Signed: September 30, 1998.John W. Magaw,Director.

Approved: January 19, 1999.

 

John P. Simpson,

Deputy Assistant Secretary (Regulatory, Tariff and Trade

Enforcement).

 

[FR Doc. 99-3759 Filed 2-16-99;8:45 am]

 

 

Announcements – IV

 

    Announcement 99-1

Major Disaster Areas Proclaimed by the

President

 

The President has determined that certain areas of the United

States were adversely affected by disasters of sufficient magnitude

to warrant Federal assistance under the Disaster Relief Act of

1974. The specific areas adversely affected as identified by

the Administrator, Federal Emergency Management Agency (FEMA)

are listed below.

Persons in the affected areas holding for sale alcoholic beverages,

cigars, cigarettes, or cigarette papers or tubes, which were

lost, rendered unmarketable, or condemned by a duly authorized

official by reason of these disasters, may be paid an amount

equal to the internal revenue taxes and customs duties paid on

such products, as provided in 26 U.S.C. 564 and 5708. Claims

for such payments should be filed with the District Director

(Regulatory Enforcement Operations), Bureau of Alcohol, Tobacco

and Firearms, for the ATF district in which the alcoholic beverages,

cigarettes, etc., were held for sale. Claims may be allowed only

if filed within six months after the date the FEMA identifies

the specific disaster area.

ARKANSAS 1266 February 8, 1999

Type of Disaster Severe storms, tornadoes and High winds

Counties: Bradley, Chicot, Clay, Columbia, Drew, Faulkner,

Grant, Greene, Hempstead, Independence, Jefferson, Lafayette,

Lonoke, Miller, Monroe, Pulaski, Saline, St. Francis, White

 

CALIFORNIA 1267 March 1, 1999

Type of Disaster: Severe freeze

Counties: Fresno, Kern, Kings, Madera, Monterey, Tulare

 

ILLINOIS 3134 January 29, 1999

Type of Disaster: Record/Near record snow

Counties: Adams, Brown, Bureau, Calhoun, Cass, Champaign,

Cook, Dewitt, DuPage, Ford, Fulton, Greene, Grundy, Hancock,

Henderson, Henry, Iroquois, Kane, Kankakee, Kendall, Knox, Lake,

La Salle, Livingston, Logan, Marshall, Macon, Mason, McDonough,

McHenry, McLean, Menard, Mercer, Morgan, Moultrie, Peoria, Piatt,

Pike, Putnam, Sangamon, Schuyler, Scott, Shelby, Stark, Tazewell,

Warren, Will, Woodford

 

INDIANA 3135 February 8, 1999

Type of Disaster: Record/Near record snow

Counties: Adams, Allen, Benton, Blackford, Boone, Carroll,

Cass, Clay, Clinton, Dekalb, Delaware, Elkhart, Fayette, Fountain,

Fulton, Grant, Hamilton, Hancock, Hendricks, Henry, Howard, Huntington,

Jasper, Jay, Johnson, Kosciusko, Lagrange, Lake, LaPorte, Madison,

Marion, Marshall, Miami, Montgomery, Morgan, Newton, Noble, Parke,

Porter, Pulaski, Putnam, Randolph, Rush, St. Joseph, Shelby,

Starke, Steuben, Tipton, Tippencoe, Vermillion, Vigo, Wabash,

Warren, Wayne, Wells, White, Whitley

 

LOUISIANA 1264 February 8, 1999

Type of Disaster: Severe ice storm

Parishes: Bienville, Catahoula, Claiborne, DeSoto, East Carroll,

Franklin, Grant, Lincoln, Morehouse, Natchitoches, Ouachita,

Red River, Richland, Sabine, Union, Webster, West Carroll, Winn

 

MAINE 1263 February 8, 1999

Type of Disaster: Severe storms, heavy rains,

high winds and inland and coastal flooding and erosion

Counties: Cumberland, York

 

MICHIGAN 3137 February 8, 1999

Type of Disaster: Near record snow

Counties: Alcona, Allegan, Arena, Barry, Berrien, Cass, Crawford,

Ionia, Iosco, Jackson, Kalamazoo, Kent, Lenawee, Macomb, Marquette,

Mecosta, Montmorency, Muskegon, Newaygo, Oakland, Ocean, Ogemaw,

Osceola, Oscoda, Otsego, Ottawa, St. Joseph, Van Buren, Wastenaw

 

MISSISSIPPI 1265 February 8, 1999

Type of Disaster: Severe winter storms, ice and

freezing rain

Counties: Attala, Bolivar, Calhoun, Carroll, Chickasaw, Choctaw,

Clay, Grenada, Humphreys, Issaquena, Itawamba, Kemper, Leake,

Lee, Leflore, Lowndes, Monroe, Montgomery, Neshoba, Noxubee,

Oktibbeha, Pontotoc, Prentiss, Sharkey, Sunflower, Tallahatchie,

Tishomingo, Union, Warren, Washington, Webster, Winston, Yalobusha,

Yazoo

 

NEW YORK 3136 February 8, 1999

Type of Disaster: Near record snow

Counties: Cattaraugus, Chautauqua, Erie, Genesee, Jefferson,

Lewis, Orleans, Niagara, Orleans, Wyoming

 

TENNESSEE 1260 February 5, 1999

Type of Disaster: Severe winter storms, ice and

freezing rain

Counties: Anderson, Bedford, Bledsoe, Campbell, Cannon, Claiborne,

Coffee, Cumberland, DeKalb, Fentress, Franklin, Giles, Grundy,

Hamilton, Hancock, Lawrence, Lewis, Lincoln, Loudon, Marion,

Marshall, Monroe, Moore, Morgan, Roane, Scott, Sequatchie, Sevier,

Union, Van Buren, Warren, Wayne, White

 

Amendments to Previously Declared Disasters

 

ALABAMA 1261 Amendment

Counties: Fayette, Lamar, Winston

 

KANSAS 1258 Amendment

Counties: Woodson

 

TENNESSEE 1262 Amendment

Counties: Benton, Carroll, Crockett, Decatur, Dickson, Giles,

Hardeman, Haywood, Henderson, Humphreys, Jackson, Lauderdale,

Lawrence, Lewis, Madison, Maury, Montgomery, Perry, Stewart,

Wayne

 

TEXAS 1257 Amendment

Counties: Grimes, Jim Wells, Kendall, Lavaca, Liberty, Matagorda,

Nueces, Polk, San Jacinto, Trinity, Walker

 

Announcement 99-2

 

Realignment of Field Offices

 

On December 11, 1998, the Director signed Industry Circular

No. 99-1. It read as follows:

 

TO: All Alcohol and Tobacco Permittees, Taxpayers and Claimants,

Federal Firearms Licensees and Permittees, and Firearms and Ammunition

Excise Taxpayers and Registrants

 

Effective October 1, 1998, the Bureau of Alcohol, Tobacco

and Firearms (ATF) is realigning its field offices. Historically,

ATF has been organized under separate regulatory and criminal

enforcement functions that operated under separate planning and

implementing structures. By not encouraging a broad approach

to deal with issues involving ATF’s criminal, regulatory

and tax responsibilities, the division along regulatory and criminal

lines has hampered ATF’s ability to use all its authorities

for maximum benefit.

 

In 1997, ATF began addressing these problems by unifying regulatory

and criminal enforcement activities at the Headquarters level.

A team approach was developed to combine programs and manage

operations. This approach will be extended to field offices nationwide.

 

As of October 1, 1998, the five (5) regulatory district offices

will be merged with the 23 criminal enforcement division offices.

The merging of these offices creates new, unified structures

in 23 locations. Each field division will be headed by a Division

Director/Special Agent in Charge (DD/SAC), who will report directly

to Headquarters and have overall responsibility for the combined

operations in each geographic area. Reporting to each DD/SAC

will be one or more Assistant Special Agents in Charge (ASA,

who will have oversight of the criminal enforcement function;

and a Director of Industry Operations (DIO), who will oversee

industry and taxation operations. The ASAC will provide secondary

supervision to field agents, and the DIO will provide secondary

supervision to field inspectors.

 

The DIO will replace the existing District Director and Assistant

District Director positions. The primary focus of the DIO will

be to ensure that industry operations and tax collection activities

are carried out in the most efficient and effective manner, and

to resolve issues at the local level. To facilitate decision

making, authority for administrative regulatory activities now

residing at the District Director level will be transferred to

the DIO. Examples of these administrative actions include offers-in-compromise,

permit suspensions and revocations, firearms and explosives denials

and revocations, and tax assessments.

Included with this Industry Circular is a listing of all ATF

field offices, including the names of the DD/SAC, DIO and ASAC,

the address, telephone number and fax number for each office.

 

John W. Magaw,

Director

 

The following listing identifies people and offices to contact

for Federal alcohol, tobacco, firearms, explosives and arson

matters. The overall manager for each location is the Division

Director/Special Agent in Charge (DD/SAC). The primary contact

for industry matters is the Director of Industry Operations (DIO).

The primary contact for criminal enforcement matters is the Assistant

Special Agent in Charge (ASAC).

 

Addresses and phone numbers change are subject to change.(1/14/99)

 

ATLANTA FIELD DIVISION

States Covered: Georgia DD/SAC: John C. Killorin Address:

2600 Century Parkway DIO: William K. Davis

Atlanta, GA 30345 ASAC: Mark W. Potter

Telephone: 404-679-5170 Vanessa C. McLemore

Fax: 404-679-5134

 

BALTIMORE FIELD DIVISION

States Covered: Delaware, Maryland DD/SAC: Larry D. Stewart

Address: Rombro Building DIO: Mary Jo Hughes

22 South Howard St., 6th Floor ASAC: John Jensen

Baltimore, MD 21201

Telephone: 410-962-0897

Fax: 410-962-2382

 

BOSTON FIELD DIVISION

States Covered: Connecticut, Maine, Massachusetts, DD/SAC:

Charles R. Thomson

North New York, New Hampshire, DIO: Bruce R. Medd

Rhode Island, Vermont ASAC: Stephen J. Raber

Address: Federal Building Thomas J. Lambert

10 Causeway ST., RM 253

Boston, MA 02222

Telephone: 617-565-7042

Fax: 617-565-7003

 

 

 

 

 

CHARLOTTE FIELD DIVISION

States Covered: North Carolina, South Carolina DD/SAC: Richard

C. Fox

Address: 4530 Park Road, STE, 400 DIO: James A. Fowler

Charlotte, NC 28209 ASAC: Louis A. Iliano

Telephone: 704-344-6125 Dondi 0. Albritton

Fax: 704-344-6722

 

CHICAGO FIELD DIVISION

States Covered: Illinois DD/SAC: Kathleen L. Kiernan

Address: 300 South Riverside Plaza DIO: Arthur W. Herbert

Suite 350 South ASAC: Mark S. Rusin

Chicago, IL 60606 Kenneth Massey

Telephone: 312-353-6935

Fax: 312-353-7668

COLUMBUS FIELD DIVISION

States Covered: Ohio, Indiana DD/SAC: Richard A. Rawlins

Address: 78 E. Chestnut, Rm. 417 DIO: Norris L. Alford

Columbus, OH 43215 ASAC: John E. Pasaka

Telephone: 614-469-7617 Mark C. Trimble

Fax: 614-469-2267

 

DALLAS FIELD DIVISION

States Covered: North Texas, Oklahoma DD/SAC: Karl Stankovic

Address: 1200 Main Tower Building DIO: John H. Brooks

Suite 2550 ASAC: Robert H. Valdez

Dallas, TX 75250 Jimmy D. Adamcik

Telephone: 214-767-2250

Fax: 214-767-2229

 

DETROIT FIELD DIVISION

States Covered: Michigan DD/SAC: Michael W. Morrissey

Address: 1155 Brewery Park BLVD. DIO: Jacqueline M. Darrah

Suite 300 ASAC: Vacant

Detroit, MI 48207

Telephone: 313-393-6000

Fax: 313-393-6054

 

HOUSTON FIELD DIVISION

States Covered: South Texas DD/SAC: George Hopgood

Address: 15355 Vantage PKWY West DIO: Angelita M. Quinones

Suite 210 ASAC: Hugo Barrera

Houston, TX 77032 James Webb

Telephone: 281-449-2073

Fax: 281-449-2049

 

KANSAS CITY FIELD DIVISION

States Covered: Iowa, Kansas, Missouri, Nebraska DD/SAC: James

R. Switzer

Address: 2600 Grand Ave., Suite 200 DIO: Robert P. Mosley

Kansas City, MO 64108 ASAC: Darrell C. Dryer

Telephone: 816-421-3440

Fax: 816-421-6511

 

LOS ANGELES FIELD DIVISION

States Covered: South California DD/SAC: Richard A. Curd

Address: 350 S. Figueroa ST., STE.800 DIO: Earl T. Kleckley

Los Angeles, CA 90071 ASAC: Virginia T. O'Brien

Telephone: 213-894-4812 John A. Torres

Fax: 213-894-0105

 

 

LOUISVILLE FIELD DIVISION

States Covered: Kentucky, West Virginia DD/SAC: James L. Brown

Address: 600 Dr. Martin Luther King DIO: Marcia F. Lambert

Jr. Place, Suite 322 ASAC: Richard E. Chase

Louisville, KY 40202

Telephone: 502-582-5211

Fax: 502-582-5634

 

MIAMI FIELD DIVISION

States Covered: South Florida, Puerto Rico DD/SAC: Patricia

L. Galupo

Address: 5225 NW 87th Avenue DIO: James P. Windau

3rd Floor ASAC: Hamilton Bobb

Miami, FL 33178 Roger G. Parker

Telephone: 305-597-4800

Fax: 305-597-4797

 

NASHVILLE FIELD DIVISION

States Covered: Alabama, Tennessee DD/SAC: James M. Cavanaugh

Address: Nashville Koger Center DIO: Harry McCabe

215 Centerview Dr., STE.215 ASAC: Vacant

Brentwood, TN 37027

Telephone: 615-781-5364

Fax: 615-781-6371

 

NEW ORLEANS FIELD DIVISION

States Covered: Arkansas, Louisiana, Mississippi DD/SAC: Guy

K. Hummel

Address: Heritage Plaza, Suite 1050 DIO: Nereida W. Levine

111 Veterans Boulevard ASAC: David L. Neiman

Metairie, LA 70005

Telephone: 504-589-2048

Fax: 504-589-2049

 

NEW YORK FIELD DIVISION

States Covered: New York (Metro), North New Jersey DD/SAC:

Peter L. Gagliardi

Address: 6 World Trade Center DIO: Lilia M. Vannett

Suite 600 ASAC: Edgar A. Dommenech

New York, NY 10048

Telephone: 212-466-5145

Fax: 212-466-5160

 

PHILADELPHIA FIELD DIVISION

States Covered: Pennsylvania, South New Jersey DD/SAC: Lawrence

L. Duchnowski

Address: US Custom House, RM 607 DIO: Audrey Stucko

2nd and Chestnut Streets ASAC: Robert F. Graham

Philadelphia, PA 19106 Gladys 0. Jones

Telephone: 215-597-7266

Fax: 215-597-6116

 

PHOENIX FIELD DIVISION

States Covered: Arizona, Colorado, New Mexico, DD/SAC: Chris

P. Sadowski

Wyoming, Utah DIO: Thomas R. Crone

Address: 3003 North Central Ave., STE 1010 ASAC: Dale G. Joesting

Phoenix, AZ 85012 Tommy L. Wittman

Telephone: 602-640-2840

Fax: 602-640-2858

 

SAN FRANCISCO FIELD DIVISION

States Covered: North California, Nevada DD/SAC: John P. Malone

Address: 221 Main Street, Ste.125 DIO: Victoria J. Renneckar

Suite 1250 ASAC: Vacant

San Francisco, CA 94105

Telephone: 415-744-7013

Fax: 415-744-9443

 

SEATTLE FIELD DIVISION

States Covered: Alaska, Guam, Hawaii, Idaho, Oregon, DD/SAC:

John C. Ross

Washington DIO: John F. Daffron

Address: 915 2nd Avenue, RM. 806 ASAC: Gary L. Thomas

Seattle, WA 98174

Telephone: 206-220-6440

Fax: 206-220-6446

 

 

 

 

 

 

ST.PAUL FIELD DIVISION

States Covered: Minnesota, Montana, North Dakota DD/SAC: Craig

W. Valentik

South Dakota, Wisconsin DIO: John V. Jarowski

Address: 1870 Minnesota World Trade Center ASAC: Gerald A.

Nunziato

30 East Seventh Street

St. Paul, MN 55101

Telephone: 612-290-3092

Fax: 612-290-3363

 

TAMPA FIELD DIVISION

States Covered: North Florida DD/SAC: Ralph Ostrowski

Address: 500 Zack St., Suite 400 DIO: Raymond F. Conrad

Tampa, FL 33602 ASAC: Alexander J. D'Atri

Telephone: 813-228-2021

Fax: 813-228-2111

 

WASHINGTON FIELD DIVISION

States Covered: Virginia, Washington, DC DD/SAC: Patrick Hynes

Address: 607 14th ST. NW., STE 620 DIO: Gerard LaRusso

Washington, DC 20005 ASAC: Lewis P. Raden

Telephone: 202-927-4011 ASAC: Robert Whitney

Fax: 202-927-4024

 

Announcement 99-3

 

Offers in Compromise

 

Company/Individual

Location Amount Alleged

 

Premium Beverage Co., Inc. $7,500 Violated Title 27, United

Opelika, AL States Code (U.S.C.),

§ 203 (c) and Title 27,

          Code of Federal Regulations (CFR), §§ 1.40 and 1.42

          by purchasing malt beverages for resale at wholesale without

          a basic permit.

Announcement 99-4

 

Revocations

 

Permittees not engaged in the operations authorized by their

permit for a period of more than (2) years are subject to revocation.

The following permit(s) have been revoked for this reason.

 

Company/Location Company/Location

 

Balkan Import Corp. New York Thai International, Inc.

Brooklyn, NY Garden City Park, NY

 

Damon Biotech, Inc. Parkchester Beer Distributors, Inc.

Needham Heights, MA Bronx, NY

 

Danny’s Beer and Soda, Inc. Ernest Steiner

New York, NY T/A Tap-A-Keg Beer Distributors

Elmhurst, NY

Distilled Trading International, Inc.

New York, NY Sullivan Beer Distributors, Inc.

T/A Oasis Beverage

Eliezer Weingarten Brooklyn, NY

Brooklyn, NY

Syncap, Inc.

Knickerbocker Liquor Corporation Cambridge, MA

Syosset, NY

Louis St. Clair and Valerie Annette W & L Beverages, Corp.

Vaughn Massapequa, NY

Jamaica, NY

 

 

 

This was last updated on June 21, 1999