Proposed Establishment of the Tulocay Viticultural Area (2006R-009P), 34902-34905 [E8-13858]
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Federal Register / Vol. 73, No. 119 / Thursday, June 19, 2008 / Proposed Rules
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Dated: June 9, 2008.
Jeffrey Shuren,
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[FR Doc. E8–13826 Filed 6–18–08; 8:45 am]
BILLING CODE 4160–01–S
DEPARTMENT OF THE TREASURY
Alcohol and Tobacco Tax and Trade
Bureau
27 CFR Part 9
[Notice No. 84; Re: Notice No. 68]
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RIN 1513–AB26
Proposed Establishment of the
Tulocay Viticultural Area (2006R–009P)
Alcohol and Tobacco Tax and
Trade Bureau, Treasury.
ACTION: Withdrawal of notice of
proposed rulemaking.
AGENCY:
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SUMMARY: The Alcohol and Tobacco Tax
and Trade Bureau announces the
withdrawal of its proposal to establish
the Tulocay viticultural area in southern
Napa County, California. We take this
action because of questions regarding
the actual name of the proposed
viticultural area and to avoid the use of
potentially misleading statements on
wine labels.
DATES: The withdrawal of the proposal
to establish the Tulocay viticultural area
is effective on June 19, 2008.
FOR FURTHER INFORMATION CONTACT:
N. A. Sutton, Regulations and Rulings
Division, Alcohol and Tobacco Tax and
Trade Bureau, 925 Lakeville St., 158,
Petaluma, CA 94952; telephone 415–
271–1254.
SUPPLEMENTARY INFORMATION:
Background
TTB Authority
Section 105(e) of the Federal Alcohol
Administration Act (FAA Act), 27
U.S.C. 205(e), authorizes the Secretary
of the Treasury to prescribe regulations
for the labeling of wine, distilled spirits,
and malt beverages. The FAA Act
provides that these regulations should,
among other things, prohibit consumer
deception and the use of misleading
statements on labels, and ensure that
labels provide the consumer with
adequate information as to the identity
and quality of the product. The Alcohol
and Tobacco Tax and Trade Bureau
(TTB) administers the regulations
promulgated under the FAA Act.
Part 4 of the TTB regulations (27 CFR
part 4) allows the establishment of
definitive viticultural areas and the use
of their names as appellations of origin
on wine labels and in wine
advertisements. Part 9 of the TTB
regulations (27 CFR part 9) sets forth
standards for petitions for the
establishment of viticultural areas and
contains the list of approved viticultural
areas.
Definition
Section 4.25(e)(1)(i) of the TTB
regulations (27 CFR 4.25(e)(1)(i)) defines
a viticultural area for American wine as
a delimited grape-growing region
distinguishable by geographical
features, the boundaries of which have
been recognized and defined in part 9
of the regulations. These designations
allow vintners and consumers to
attribute a given quality, reputation, or
other characteristic of a wine made from
grapes grown in an area to its
geographic origin. The establishment of
viticultural areas allows vintners to
describe more accurately the origin of
their wines to consumers and helps
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consumers to identify wines they may
purchase. Establishment of a viticultural
area is neither an approval nor an
endorsement by TTB of the wine
produced in that area.
Requirements
Section 4.25(e)(2) of the TTB
regulations outlines the procedure for
proposing an American viticultural area
and provides that any interested party
may petition TTB to establish a grapegrowing region as a viticultural area.
Section 9.3(b) of the TTB regulations
requires the petition to include—
• Evidence that the name of the
viticultural area is locally and/or
nationally known as referring to the area
specified in the application;
• Historical or current evidence that
the boundaries of the viticultural area
are as specified in the application;
• Evidence relating to the
geographical features (climate, soil,
elevation, physical features, etc.) which
distinguish the viticultural features of
the proposed area from surrounding
areas;
• The specific boundaries of the
viticultural area, based on features
which can be found on United States
Geological Survey (USGS) maps of the
largest applicable scale; and
• A copy of the appropriate USGS
map(s) with boundaries prominently
marked.
Publication of Notice No. 68
On November 8, 2006, TTB published
in the Federal Register (71 FR 65432),
as Notice No. 68, a notice of proposed
rulemaking to establish the ‘‘Tulocay’’
American viticultural area in southern
Napa County, California. We undertook
that action in response to a petition filed
by Aaron Pott, a winemaker, and
Marshall Newman of Newman
Communications, on behalf of vintners
and grape growers in the Tulocay region
of Napa County, California. As
explained in Notice No.68, the proposed
Tulocay viticultural area lies entirely
within Napa County and also entirely
within the existing Napa Valley
viticultural area (27 CFR 9.23), which in
turn is entirely within the existing,
multi-county North Coast viticultural
area (27 CFR 9.30). Notice No. 68
invited comments from the public on
the proposal, and the comment period
closed on January 8, 2007.
Comments Received in Response to
Notice No. 68
TTB received 20 comments in
response to Notice No. 68 during the
comment period. Of those, 8 comments
supported the petition and 12 comments
requested that the proposed Tulocay
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viticultural area’s name be changed to
‘‘Coombsville,’’ or ‘‘Coombsville
District,’’ while maintaining the
proposed boundary line. After the close
of the comment period, TTB received
one comment supporting the petition
and two comments opposing the
establishment of the proposed Tulocay
viticultural area.
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Comments Fully in Support
The supportive commenters stated
that the Tulocay region is a unique
grape-growing region with different
seasonal changes, climatic conditions,
topography, soils, and growing season,
as compared to the rest of the Napa
Valley. Also, one supporting commenter
explained that the Tulocay Land Grant
is an important part of Napa Valley
history. The Napa Valley Vintners
Association, in a letter submitted after
the close of the comment period,
supported the establishment of the
Tulocay viticultural area, explaining
that its Appellation Committee
reviewed the Tulocay viticultural area
petition and found it to be
comprehensive and deserving of
endorsement.
Name Change Comments
Tom Farella, owner of a vineyard and
winery located within the proposed
Tulocay viticultural area, qualified his
support for the proposed viticultural
area’s establishment by disagreeing with
the ‘‘Tulocay’’ name and stating a
preference for the name ‘‘Coombsville.’’
He stated that Coombsville is the
common neighborhood description used
for real estate, in references to the area
by the main local newspaper (the Napa
Register), and by the greater local
public. Mr. Farella also noted that a
recent article in Wine and Spirits
magazine referred to the area as
Coombsville, and that the Coombsville
name ‘‘has been cited in wine books and
publications for years.’’ He added that
the petitioners chose to ignore use of the
Coombsville name because they did not
like its sound and that they would not
discuss the matter when he brought the
issue up during informal meetings.
Finally, if TTB were to proceed with the
name ‘‘Tulocay,’’ he strongly endorsed
the addition of ‘‘District’’ to the name in
order to avoid confusion with the longestablished ‘‘Tulocay’’ brand name used
by Tulocay Winery. In this regard, he
stated, ‘‘Our vineyard and winery are
located at the very heart of the proposed
viticultural area and I would be
disinclined to add simply ‘‘Tulocay’’ to
our label. I find that it would be very
confusing for the consumer to see our
brand and Bill Cadman’s Tulocay brand
on the same label.’’
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A comment from Michael L. Turner,
also expressed a preference for the name
‘‘Coombsville’’ or ‘‘Coombsville
District’’ and included historical
information about Nathan Coombs, an
early American settler of Napa County
regarded as the founder of the city of
Napa. Mr. Coombs is memorialized by
Coombs Street, located in downtown
Napa to the west of the proposed
viticultural area boundary line, and by
Coombsville Road, which runs east to
west through the southern part of the
proposed viticultural area. Other
commenters supporting the use of the
‘‘Coombsville’’ name echoed the
comments of Mr. Farella and Mr. Turner
regarding the use of the Coombsville
name in southern Napa County and
Nathan Coombs’ role in the settlement
of Napa County.
Comments From Tulocay Winery
After the close of the Notice No. 68
public comment period, TTB received a
letter from Bill Cadman, the owner of
Tulocay Winery, which is located on
Coombsville Road in Napa. Noting that
he has used the Tulocay brand name
since his first vintage in 1975, Mr.
Cadman strenuously objected to the
establishment of the proposed Tulocay
viticultural area since this would cause
‘‘inestimable economic damage’’ to a
label and wine reputation that he has
worked over 30 years to create. Mr.
Cadman stated that he grows no grapes,
but buys them from independent
growers in Napa, Sonoma, Amador, and
El Dorado Counties, California. Stating
that his Tulocay brand Amador County
Zinfandel wine vintages date from 1975
to the present, Mr. Cadman argued that
if the proposed Tulocay viticultural area
were approved, California State law
would then prohibit production of his
Tulocay brand name wines from grapes
grown outside of Napa County. Mr.
Cadman further stated that the State of
California could seize and dispose of his
Tulocay wines made from non-Napa
County grapes and produced after
January 1, 2001.
TTB was also contacted by Kristen
Techel, attorney for Mr. Cadman, who
submitted a memorandum that included
additional information in support of Mr.
Cadman’s assertions. Ms. Techel
explained that in August 2004, the
California Supreme Court issued an
opinion in Bronco Wine Company v.
Jolly, 33 Cal. 4th 943 (2004), cert.
denied, 544 U.S. 922 (2005), supporting
section 25241 of the California Business
& Professions Code (CB&PC), which
allows the use of specified viticulturally
significant names (that is, ‘‘Napa,’’ or
any viticultural area appellation of
origin established under part 9 of the
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TTB regulations and located entirely
within Napa County, or any name
similar to the foregoing that is likely to
cause confusion as to the origin of the
wine) only if at least 75 percent of the
wine was derived from grapes grown in
Napa County.
Ms. Techel further stated that the
Bronco decision made it clear that the
Federal grandfather clause (27 CFR
4.39(i)(2)) regarding the use of
viticultural area names cannot be used
to save Mr. Cadman’s Tulocay brand
labels which would be in conflict with
section 25241 of the CB&PC (that is,
Tulocay brand labels that are used on
wines, more than 25 percent of which
were created from grapes grown outside
of Napa County). She asserted that if the
Tulocay viticultural area were
established by TTB, Tulocay Winery
might have to destroy existing wines
and stop production of its most popular
wines. Ms. Techel then urged TTB to
use extreme caution in granting
viticultural area petitions within Napa
because of the dire effects of this State
law.
Ms. Techel also asserted that the
Tulocay petition must be rejected
because the area described in the
petition is known as Coombsville. She
stated that local residents most often
refer to the area as Coombsville, that
local real estate listings generally refer
to Coombsville, and that the Napa
County General Plan refers to the region
within the proposed viticultural area as
Coombsville. She also cited articles
from the July 2001 issue of Wine
Spectator (‘‘Putting Coombsville on the
Map for Napa Cabernet’’) and from the
December 2006 issue of Wine & Spirits
Magazine (‘‘The Future of Napa
Cabernet’’) as evidence that the area is
known as Coombsville. She concluded
that Coombsville is what the wine
industry already calls this area.
Analysis of Comments
Name Dispute
The proposed Tulocay viticultural
area petition and supporting
documentation focused on the Tulocay
name as used for a historical land grant,
an in-use cemetery, and several other
Napa County sites. The Tulocay
viticultural area petitioners included an
1859 plat map that labels the area as
‘‘Tulocay Rancho,’’ and an 1876 Napa
County map which labeled the area as
‘‘Rancho Tulucay.’’ Further, a
publication, ‘‘The Past is Father of the
Present, a Spanish California History
and Family Legends 1737–1973,’’ by
Viviene Juarez Rose, included the article
‘‘Days of Old on Rancho Tulucay,’’
which features personal accounts of
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several members of the Juarez family.
However, evidence of the current use of
‘‘Tulocay’’ to refer to the proposed area
is rather limited. The USGS 1980
photorevised Napa and the 1968
photorevised Mt. George quadrangle
maps included with the petition show
Tulucay Creek flowing through the
proposed viticultural area, and two
USGS topographic maps label the
general region as ‘‘Tulocay.’’ However,
TTB conducted research through the online Geographic Names Information
System (GNIS) maintained by the USGS,
and for ‘‘Tulocay’’ there were only three
references-the cemetery, a creek, and
Tulocay Winery. Thus, other than the
USGS maps with a reference to Tulocay,
there is little evidence that the area in
question is currently locally and/or
nationally known as ‘‘Tulocay.’’
The comments in support of
‘‘Coombsville’’ and ‘‘Coombsville
District’’ include historical references to
Nathan Coombs, as well as fairly recent
references to the region as
‘‘Coombsville.’’ These current references
include references in Napa County
documents as well as specific references
to the area known as ‘‘Coombsville’’
appearing in wine related publications.
However, TTB’s own review of maps of
the general area (the Napa Valley
Communities map, published in March
of 1999 by the American Automobile
Association, and the USGS 1980
photorevised Napa and 1968
photorevised Mt. George quadrangle
maps) revealed the name ‘‘Coombsville’’
only in connection with ‘‘Coombsville
Road,’’ which runs east-west in the
southern portion of the proposed
Tulocay viticultural area. TTB’s
research through GNIS found no hits for
‘‘Coombsville’’ or ‘‘Coombsville
District’’ anywhere in California.
In sum, the comments received on
changing the proposed Tulocay
viticultural area’s name to
‘‘Coombsville’’ or ‘‘Coombsville
District’’ had some current evidence of
the use of the name ‘‘Coombsville’’ but
lacked sufficient substantiating
evidence in the form of map references
or GNIS hits to support the use of either
of those names for the proposed
viticultural area. Further, though the
commenters suggest ‘‘Coombsville’’ or
‘‘Coombsville District’’ would be their
preferred name for the proposed
viticultural area, it should be noted that
TTB has not received a petition
proposing the establishment of a
viticultural area named ‘‘Coombsville’’
or ‘‘Coombsville District’’; the petition
received by TTB proposed the name
‘‘Tulocay’’ as the name of the
viticultural area.
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In regard to Mr. Farella’s comment
that the name ‘‘Tulocay District’’ should
be considered, neither the current
Tulocay viticultural area petition nor
Mr. Farella’s letter contained any
documentation or other substantiating
evidence in favor of the name ‘‘Tulocay
District.’’ Further TTB found no hits for
‘‘Tulocay District’’ through GNIS.
After careful consideration of all the
name evidence, TTB believes that the
limited documentation evidencing that
the area in question is currently known
as Tulocay and the significant number
of commenters in favor of the names
‘‘Coombsville’’ and ‘‘Coombsville
District,’’ along with the documentation
they included with their comments, cast
doubt on the advisability of recognizing
‘‘Tulocay’’ standing alone as the name
of the petitioned-for viticultural area. In
particular, the petition name evidence
and the commenters’ evidence in
support of Coombsville and
Coombsville District, taken together,
demonstrate a lack of unity among the
region’s industry members as to what
the name of the petitioned-for
viticultural area is locally and/or
nationally known as, thus drawing into
question whether there is, in fact, a
viticultural area known as ‘‘Tulocay’’
that TTB should recognize in its
regulations.
Effect on Tulocay Winery
Under the TTB regulations, for a wine
to be labeled with a viticultural area
name or with a brand name that
includes a viticultural area name or
other term identified as being
viticulturally significant in part 9 of the
TTB regulations, at least 85 percent of
the wine must be derived from grapes
grown within the area represented by
that name or other term, and the wine
must meet the other conditions listed in
27 CFR 4.25(e)(3). If the wine is not
eligible for labeling with the viticultural
area name or other viticulturally
significant term and that name or term
appears in the brand name, then the
label is not in compliance and the
bottler must change the brand name and
obtain approval of a new label.
The TTB regulations in 27 CFR
4.39(i)(2) contain a ‘‘grandfather’’ clause
exception to the 85 percent rule
described above. Under this exception,
for brand names used in existing
certificates of label approval issued
prior to July 7, 1986, the labels may
continue to be used even though the
brand name includes a viticultural area
name or other term of viticultural
significance and the wine does not meet
the 85 percent rule, provided that:
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• The wine is labeled with an
appellation of origin as specified in
§ 4.39(i)(2)(ii); or
• The wine is labeled with some
other statement that TTB finds
‘‘sufficient to dispel the impression that
the geographic area suggested by the
brand name is indicative of the origin of
the wine’’ (§ 4.39(i)(2)(iii)).
It is clear that Mr. Cadman’s Tulocay
wine labels would be ‘‘grandfathered’’
under the TTB regulations if the
proposed Tulocay viticultural area were
established, and, accordingly, he could
continue to use those grandfathered
‘‘Tulocay Winery’’ labels for TTB
purposes provided that the labels meet
the requirements of § 4.39(i)(2)(ii) or
(iii).
However, based on the terms of
section 25241 of the CB&PC and the
California State Supreme Court’s ruling
in the Bronco case that the provisions of
the California statute are not preempted
by the § 4.39(i) grandfather provision, it
is clear that the TTB regulatory
provisions would afford no effective
label use protection to Tulocay Winery
once the proposed Tulocay viticultural
area were established. This is because
under section 25241(c)(2) of the CB&PC,
‘‘Tulocay’’ would be a name of
viticultural significance, thus allowing
Mr. Cadman to continue to use the name
of his winery on his labels only if his
wine qualifies for use of the Napa
County appellation of origin under
Federal regulations (that is, at least 75
percent of the wine must be derived
from grapes grown within Napa
County). Under section 25241 of the
CB&PC, operations in contravention of
that provision could result in
suspension or revocation of a license
and seizure and disposal of the wine by
the State of California.
TTB Finding
After careful consideration TTB has
determined that it would not be
appropriate to proceed with the
establishment of the proposed Tulocay
American viticultural area for the
following reasons:
• The comments submitted, and the
evidence and other information
available, raise a substantial question as
to whether there is a sufficient basis to
conclude that the geographical area
described in the petition is locally or
nationally known as ‘‘Tulocay.’’ While
evidence suggesting the name
‘‘Coombsville’’ is a factor in this regard,
the evidence currently available would
not, standing alone, support the
establishment of a viticultural area
under the names ‘‘Coombsville’’ or
‘‘Coombsville District.’’ Moreover, the
evidence does not support the name
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‘‘Tulocay District,’’ and currently there
is no petition requesting the
establishment of a viticultural area in
the subject area using a variation of
Tulocay, such as Tulocay District, or
any other name, such as Coombsville or
Coombsville District. It is noted that
these findings do not preclude future
consideration of a petition, supported
by sufficient name evidence, proposing
the establishment of a viticultural area
in the subject area using a name other
than ‘‘Tulocay.’’
• Consumer confusion could ensue
regarding the identity and quality of
wines bearing the term ‘‘Tulocay’’ if that
term, which for more than 30 years has
been identified with wines produced by
Tulocay Winery from grapes grown in
multiple California counties, were
suddenly to disappear as a brand name
of Tulocay Winery products and be used
on labels for wines produced by other
wineries primarily from grapes grown
within a small portion of Napa County.
Such consumer confusion resulting
from the approval of the proposed
Tulocay AVA is contrary to the purpose
of the FAA Act.
For the reasons stated above, the
proposal to establish the Tulocay
viticultural area is withdrawn.
Signed: March 17, 2008.
John J. Manfreda,
Administrator.
Approved: June 13, 2008.
Timothy E. Skud,
Deputy Assistant Secretary (Tax, Trade, and
Tariff Policy).
[FR Doc. E8–13858 Filed 6–18–08; 8:45 am]
BILLING CODE 4810–31–P
DEPARTMENT OF JUSTICE
28 CFR Part 20
I. Posting of Public Comments
II. Background
III. Fee Calculation
IV. Revised Fee Schedule
V. Administrative
VI. Regulatory Certifications
[Docket No. FBI 114]
RIN 1110–AA26
FBI Criminal Justice Information
Services Division User Fees
Federal Bureau of Investigation
(FBI), Justice.
ACTION: Notice of proposed rulemaking.
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AGENCY:
SUMMARY: The FBI is authorized to
establish and collect fees for providing
fingerprint-based and name-based
Criminal History Record Information
(CHRI) checks and other identification
services submitted by authorized users
for noncriminal justice purposes
including employment and licensing.
The FBI may set such fees at a level to
include an amount to establish a fund
to defray expenses for the automation of
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fingerprint identification and criminal
justice information services and
associated costs. The proposed rule
explains the methodology used to
calculate the revised fees, provides the
proposed fee schedule, and advises that
future fee adjustments will be made by
notice published in the Federal
Register. After public comment, a final
rule and notice of the final fee schedule
will be published concurrently in the
Federal Register.
DATES: Written comments must be
received on or before August 18, 2008.
ADDRESSES: You may submit comments,
identified by Docket No. FBI 114, by
either of the following methods:
• Federal Regulations Web site: You
may review this regulation on https://
www.Regulations.gov and use the
comment form for this regulation to
submit your comments. You must
include Docket No. FBI 114 in the
subject box of your message.
• Mail: You may use the U.S. Postal
Service or other commercial delivery
services to submit written comments to
the FBI Criminal Justice Information
Services Division, 1000 Custer Hollow
Road, Module E–3, Clarksburg, West
Virginia 26306, Attention: Christopher
L. Enourato. To ensure proper handling,
please reference Docket No. FBI 114 in
your comment. When submitting
written comments, please allow for
delivery time plus at least two days for
internal mail security scanning and
delivery.
FOR FURTHER INFORMATION CONTACT:
Christopher L. Enourato, FBI, Criminal
Justice Information Services Division,
1000 Custer Hollow Road, Module E–3,
Clarksburg, West Virginia 26306,
telephone number 304–625–2910.
SUPPLEMENTARY INFORMATION:
I. Posting of Public Comments
Please note that all comments on the
proposed rule are considered part of the
public record and made available for
public inspection online at https://
www.Regulations.gov. Such information
includes personal identifying
information (such as your name,
address, etc.) voluntarily submitted by
the commenter.
If you want to submit personal
identifying information (such as your
name, address, etc.) as part of your
comment, but do not want it to be
posted online, you must include the
phrase ‘‘PERSONAL IDENTIFYING
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34905
INFORMATION’’ in the first paragraph
of your comment. You must also locate
all the personal identifying information
you do not want posted online in the
first paragraph of your comment and
identify what information you want
redacted.
If you want to submit confidential
business information as part of your
comment but do not want it to be posted
online, you must include the phrase
‘‘CONFIDENTIAL BUSINESS
INFORMATION’’ in the first paragraph
of your comment. You must also
prominently identify confidential
business information to be redacted
within the comment. If a comment has
so much confidential business
information that it cannot be effectively
redacted, all or part of that comment
may not be posted on https://
www.Regulations.gov.
Personal identifying information
identified and located as set forth above
will be placed in the agency’s public
docket file, but not posted online.
Confidential business information
identified and located as set forth above
will not be placed in the public docket
file. If you wish to inspect the agency’s
public docket file in person by
appointment, please see the ‘‘For
Additional Information’’ paragraph.
II. Background
For the purposes of this discussion,
the FBI user fees are classified according
to the FBI division that provides the
check in question: the Records
Management Division (RMD) or the
Criminal Justice Information Services
(CJIS) Division. The proposed rule
implements the FBI’s statutory authority
to establish and collect fees for
noncriminal justice fingerprint-based
and name-based CHRI checks and other
identification services performed by the
CJIS Division. Fees for name checks
performed by RMD will be the subject
of a separate rulemaking. Further, under
28 CFR 16.33, the FBI is authorized to
collect a fee for the production of an FBI
identification record in response to a
written request by the subject of the
record; adjustments to that fee will be
set out in a third rulemaking.
The proposed rule explains the
methodology used to calculate the FBI’s
revised fees, provides a proposed fee
schedule, and advises that future fee
adjustments will be made by notice
published in the Federal Register. After
public comment, a final rule and notice
of the final fee schedule will be
published concurrently in the Federal
Register. The rule will be published at
28 CFR Part 20.
E:\FR\FM\19JNP1.SGM
19JNP1
]]>Agencies
[Federal Register Volume 73, Number 119 (Thursday, June 19, 2008)]
[Proposed Rules]
[Pages 34902-34905]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-13858]
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DEPARTMENT OF THE TREASURY
Alcohol and Tobacco Tax and Trade Bureau
27 CFR Part 9
[Notice No. 84; Re: Notice No. 68]
RIN 1513-AB26
Proposed Establishment of the Tulocay Viticultural Area (2006R-
009P)
AGENCY: Alcohol and Tobacco Tax and Trade Bureau, Treasury.
ACTION: Withdrawal of notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: The Alcohol and Tobacco Tax and Trade Bureau announces the
withdrawal of its proposal to establish the Tulocay viticultural area
in southern Napa County, California. We take this action because of
questions regarding the actual name of the proposed viticultural area
and to avoid the use of potentially misleading statements on wine
labels.
DATES: The withdrawal of the proposal to establish the Tulocay
viticultural area is effective on June 19, 2008.
FOR FURTHER INFORMATION CONTACT:
N. A. Sutton, Regulations and Rulings Division, Alcohol and Tobacco Tax
and Trade Bureau, 925 Lakeville St., 158, Petaluma, CA 94952; telephone
415-271-1254.
SUPPLEMENTARY INFORMATION:
Background
TTB Authority
Section 105(e) of the Federal Alcohol Administration Act (FAA Act),
27 U.S.C. 205(e), authorizes the Secretary of the Treasury to prescribe
regulations for the labeling of wine, distilled spirits, and malt
beverages. The FAA Act provides that these regulations should, among
other things, prohibit consumer deception and the use of misleading
statements on labels, and ensure that labels provide the consumer with
adequate information as to the identity and quality of the product. The
Alcohol and Tobacco Tax and Trade Bureau (TTB) administers the
regulations promulgated under the FAA Act.
Part 4 of the TTB regulations (27 CFR part 4) allows the
establishment of definitive viticultural areas and the use of their
names as appellations of origin on wine labels and in wine
advertisements. Part 9 of the TTB regulations (27 CFR part 9) sets
forth standards for petitions for the establishment of viticultural
areas and contains the list of approved viticultural areas.
Definition
Section 4.25(e)(1)(i) of the TTB regulations (27 CFR 4.25(e)(1)(i))
defines a viticultural area for American wine as a delimited grape-
growing region distinguishable by geographical features, the boundaries
of which have been recognized and defined in part 9 of the regulations.
These designations allow vintners and consumers to attribute a given
quality, reputation, or other characteristic of a wine made from grapes
grown in an area to its geographic origin. The establishment of
viticultural areas allows vintners to describe more accurately the
origin of their wines to consumers and helps consumers to identify
wines they may purchase. Establishment of a viticultural area is
neither an approval nor an endorsement by TTB of the wine produced in
that area.
Requirements
Section 4.25(e)(2) of the TTB regulations outlines the procedure
for proposing an American viticultural area and provides that any
interested party may petition TTB to establish a grape-growing region
as a viticultural area. Section 9.3(b) of the TTB regulations requires
the petition to include--
Evidence that the name of the viticultural area is locally
and/or nationally known as referring to the area specified in the
application;
Historical or current evidence that the boundaries of the
viticultural area are as specified in the application;
Evidence relating to the geographical features (climate,
soil, elevation, physical features, etc.) which distinguish the
viticultural features of the proposed area from surrounding areas;
The specific boundaries of the viticultural area, based on
features which can be found on United States Geological Survey (USGS)
maps of the largest applicable scale; and
A copy of the appropriate USGS map(s) with boundaries
prominently marked.
Publication of Notice No. 68
On November 8, 2006, TTB published in the Federal Register (71 FR
65432), as Notice No. 68, a notice of proposed rulemaking to establish
the ``Tulocay'' American viticultural area in southern Napa County,
California. We undertook that action in response to a petition filed by
Aaron Pott, a winemaker, and Marshall Newman of Newman Communications,
on behalf of vintners and grape growers in the Tulocay region of Napa
County, California. As explained in Notice No.68, the proposed Tulocay
viticultural area lies entirely within Napa County and also entirely
within the existing Napa Valley viticultural area (27 CFR 9.23), which
in turn is entirely within the existing, multi-county North Coast
viticultural area (27 CFR 9.30). Notice No. 68 invited comments from
the public on the proposal, and the comment period closed on January 8,
2007.
Comments Received in Response to Notice No. 68
TTB received 20 comments in response to Notice No. 68 during the
comment period. Of those, 8 comments supported the petition and 12
comments requested that the proposed Tulocay
[[Page 34903]]
viticultural area's name be changed to ``Coombsville,'' or
``Coombsville District,'' while maintaining the proposed boundary line.
After the close of the comment period, TTB received one comment
supporting the petition and two comments opposing the establishment of
the proposed Tulocay viticultural area.
Comments Fully in Support
The supportive commenters stated that the Tulocay region is a
unique grape-growing region with different seasonal changes, climatic
conditions, topography, soils, and growing season, as compared to the
rest of the Napa Valley. Also, one supporting commenter explained that
the Tulocay Land Grant is an important part of Napa Valley history. The
Napa Valley Vintners Association, in a letter submitted after the close
of the comment period, supported the establishment of the Tulocay
viticultural area, explaining that its Appellation Committee reviewed
the Tulocay viticultural area petition and found it to be comprehensive
and deserving of endorsement.
Name Change Comments
Tom Farella, owner of a vineyard and winery located within the
proposed Tulocay viticultural area, qualified his support for the
proposed viticultural area's establishment by disagreeing with the
``Tulocay'' name and stating a preference for the name ``Coombsville.''
He stated that Coombsville is the common neighborhood description used
for real estate, in references to the area by the main local newspaper
(the Napa Register), and by the greater local public. Mr. Farella also
noted that a recent article in Wine and Spirits magazine referred to
the area as Coombsville, and that the Coombsville name ``has been cited
in wine books and publications for years.'' He added that the
petitioners chose to ignore use of the Coombsville name because they
did not like its sound and that they would not discuss the matter when
he brought the issue up during informal meetings. Finally, if TTB were
to proceed with the name ``Tulocay,'' he strongly endorsed the addition
of ``District'' to the name in order to avoid confusion with the long-
established ``Tulocay'' brand name used by Tulocay Winery. In this
regard, he stated, ``Our vineyard and winery are located at the very
heart of the proposed viticultural area and I would be disinclined to
add simply ``Tulocay'' to our label. I find that it would be very
confusing for the consumer to see our brand and Bill Cadman's Tulocay
brand on the same label.''
A comment from Michael L. Turner, also expressed a preference for
the name ``Coombsville'' or ``Coombsville District'' and included
historical information about Nathan Coombs, an early American settler
of Napa County regarded as the founder of the city of Napa. Mr. Coombs
is memorialized by Coombs Street, located in downtown Napa to the west
of the proposed viticultural area boundary line, and by Coombsville
Road, which runs east to west through the southern part of the proposed
viticultural area. Other commenters supporting the use of the
``Coombsville'' name echoed the comments of Mr. Farella and Mr. Turner
regarding the use of the Coombsville name in southern Napa County and
Nathan Coombs' role in the settlement of Napa County.
Comments From Tulocay Winery
After the close of the Notice No. 68 public comment period, TTB
received a letter from Bill Cadman, the owner of Tulocay Winery, which
is located on Coombsville Road in Napa. Noting that he has used the
Tulocay brand name since his first vintage in 1975, Mr. Cadman
strenuously objected to the establishment of the proposed Tulocay
viticultural area since this would cause ``inestimable economic
damage'' to a label and wine reputation that he has worked over 30
years to create. Mr. Cadman stated that he grows no grapes, but buys
them from independent growers in Napa, Sonoma, Amador, and El Dorado
Counties, California. Stating that his Tulocay brand Amador County
Zinfandel wine vintages date from 1975 to the present, Mr. Cadman
argued that if the proposed Tulocay viticultural area were approved,
California State law would then prohibit production of his Tulocay
brand name wines from grapes grown outside of Napa County. Mr. Cadman
further stated that the State of California could seize and dispose of
his Tulocay wines made from non-Napa County grapes and produced after
January 1, 2001.
TTB was also contacted by Kristen Techel, attorney for Mr. Cadman,
who submitted a memorandum that included additional information in
support of Mr. Cadman's assertions. Ms. Techel explained that in August
2004, the California Supreme Court issued an opinion in Bronco Wine
Company v. Jolly, 33 Cal. 4th 943 (2004), cert. denied, 544 U.S. 922
(2005), supporting section 25241 of the California Business &
Professions Code (CB&PC), which allows the use of specified
viticulturally significant names (that is, ``Napa,'' or any
viticultural area appellation of origin established under part 9 of the
TTB regulations and located entirely within Napa County, or any name
similar to the foregoing that is likely to cause confusion as to the
origin of the wine) only if at least 75 percent of the wine was derived
from grapes grown in Napa County.
Ms. Techel further stated that the Bronco decision made it clear
that the Federal grandfather clause (27 CFR 4.39(i)(2)) regarding the
use of viticultural area names cannot be used to save Mr. Cadman's
Tulocay brand labels which would be in conflict with section 25241 of
the CB&PC (that is, Tulocay brand labels that are used on wines, more
than 25 percent of which were created from grapes grown outside of Napa
County). She asserted that if the Tulocay viticultural area were
established by TTB, Tulocay Winery might have to destroy existing wines
and stop production of its most popular wines. Ms. Techel then urged
TTB to use extreme caution in granting viticultural area petitions
within Napa because of the dire effects of this State law.
Ms. Techel also asserted that the Tulocay petition must be rejected
because the area described in the petition is known as Coombsville. She
stated that local residents most often refer to the area as
Coombsville, that local real estate listings generally refer to
Coombsville, and that the Napa County General Plan refers to the region
within the proposed viticultural area as Coombsville. She also cited
articles from the July 2001 issue of Wine Spectator (``Putting
Coombsville on the Map for Napa Cabernet'') and from the December 2006
issue of Wine & Spirits Magazine (``The Future of Napa Cabernet'') as
evidence that the area is known as Coombsville. She concluded that
Coombsville is what the wine industry already calls this area.
Analysis of Comments
Name Dispute
The proposed Tulocay viticultural area petition and supporting
documentation focused on the Tulocay name as used for a historical land
grant, an in-use cemetery, and several other Napa County sites. The
Tulocay viticultural area petitioners included an 1859 plat map that
labels the area as ``Tulocay Rancho,'' and an 1876 Napa County map
which labeled the area as ``Rancho Tulucay.'' Further, a publication,
``The Past is Father of the Present, a Spanish California History and
Family Legends 1737-1973,'' by Viviene Juarez Rose, included the
article ``Days of Old on Rancho Tulucay,'' which features personal
accounts of
[[Page 34904]]
several members of the Juarez family. However, evidence of the current
use of ``Tulocay'' to refer to the proposed area is rather limited. The
USGS 1980 photorevised Napa and the 1968 photorevised Mt. George
quadrangle maps included with the petition show Tulucay Creek flowing
through the proposed viticultural area, and two USGS topographic maps
label the general region as ``Tulocay.'' However, TTB conducted
research through the on-line Geographic Names Information System (GNIS)
maintained by the USGS, and for ``Tulocay'' there were only three
references-the cemetery, a creek, and Tulocay Winery. Thus, other than
the USGS maps with a reference to Tulocay, there is little evidence
that the area in question is currently locally and/or nationally known
as ``Tulocay.''
The comments in support of ``Coombsville'' and ``Coombsville
District'' include historical references to Nathan Coombs, as well as
fairly recent references to the region as ``Coombsville.'' These
current references include references in Napa County documents as well
as specific references to the area known as ``Coombsville'' appearing
in wine related publications. However, TTB's own review of maps of the
general area (the Napa Valley Communities map, published in March of
1999 by the American Automobile Association, and the USGS 1980
photorevised Napa and 1968 photorevised Mt. George quadrangle maps)
revealed the name ``Coombsville'' only in connection with ``Coombsville
Road,'' which runs east-west in the southern portion of the proposed
Tulocay viticultural area. TTB's research through GNIS found no hits
for ``Coombsville'' or ``Coombsville District'' anywhere in California.
In sum, the comments received on changing the proposed Tulocay
viticultural area's name to ``Coombsville'' or ``Coombsville District''
had some current evidence of the use of the name ``Coombsville'' but
lacked sufficient substantiating evidence in the form of map references
or GNIS hits to support the use of either of those names for the
proposed viticultural area. Further, though the commenters suggest
``Coombsville'' or ``Coombsville District'' would be their preferred
name for the proposed viticultural area, it should be noted that TTB
has not received a petition proposing the establishment of a
viticultural area named ``Coombsville'' or ``Coombsville District'';
the petition received by TTB proposed the name ``Tulocay'' as the name
of the viticultural area.
In regard to Mr. Farella's comment that the name ``Tulocay
District'' should be considered, neither the current Tulocay
viticultural area petition nor Mr. Farella's letter contained any
documentation or other substantiating evidence in favor of the name
``Tulocay District.'' Further TTB found no hits for ``Tulocay
District'' through GNIS.
After careful consideration of all the name evidence, TTB believes
that the limited documentation evidencing that the area in question is
currently known as Tulocay and the significant number of commenters in
favor of the names ``Coombsville'' and ``Coombsville District,'' along
with the documentation they included with their comments, cast doubt on
the advisability of recognizing ``Tulocay'' standing alone as the name
of the petitioned-for viticultural area. In particular, the petition
name evidence and the commenters' evidence in support of Coombsville
and Coombsville District, taken together, demonstrate a lack of unity
among the region's industry members as to what the name of the
petitioned-for viticultural area is locally and/or nationally known as,
thus drawing into question whether there is, in fact, a viticultural
area known as ``Tulocay'' that TTB should recognize in its regulations.
Effect on Tulocay Winery
Under the TTB regulations, for a wine to be labeled with a
viticultural area name or with a brand name that includes a
viticultural area name or other term identified as being viticulturally
significant in part 9 of the TTB regulations, at least 85 percent of
the wine must be derived from grapes grown within the area represented
by that name or other term, and the wine must meet the other conditions
listed in 27 CFR 4.25(e)(3). If the wine is not eligible for labeling
with the viticultural area name or other viticulturally significant
term and that name or term appears in the brand name, then the label is
not in compliance and the bottler must change the brand name and obtain
approval of a new label.
The TTB regulations in 27 CFR 4.39(i)(2) contain a ``grandfather''
clause exception to the 85 percent rule described above. Under this
exception, for brand names used in existing certificates of label
approval issued prior to July 7, 1986, the labels may continue to be
used even though the brand name includes a viticultural area name or
other term of viticultural significance and the wine does not meet the
85 percent rule, provided that:
The wine is labeled with an appellation of origin as
specified in Sec. 4.39(i)(2)(ii); or
The wine is labeled with some other statement that TTB
finds ``sufficient to dispel the impression that the geographic area
suggested by the brand name is indicative of the origin of the wine''
(Sec. 4.39(i)(2)(iii)).
It is clear that Mr. Cadman's Tulocay wine labels would be
``grandfathered'' under the TTB regulations if the proposed Tulocay
viticultural area were established, and, accordingly, he could continue
to use those grandfathered ``Tulocay Winery'' labels for TTB purposes
provided that the labels meet the requirements of Sec. 4.39(i)(2)(ii)
or (iii).
However, based on the terms of section 25241 of the CB&PC and the
California State Supreme Court's ruling in the Bronco case that the
provisions of the California statute are not preempted by the Sec.
4.39(i) grandfather provision, it is clear that the TTB regulatory
provisions would afford no effective label use protection to Tulocay
Winery once the proposed Tulocay viticultural area were established.
This is because under section 25241(c)(2) of the CB&PC, ``Tulocay''
would be a name of viticultural significance, thus allowing Mr. Cadman
to continue to use the name of his winery on his labels only if his
wine qualifies for use of the Napa County appellation of origin under
Federal regulations (that is, at least 75 percent of the wine must be
derived from grapes grown within Napa County). Under section 25241 of
the CB&PC, operations in contravention of that provision could result
in suspension or revocation of a license and seizure and disposal of
the wine by the State of California.
TTB Finding
After careful consideration TTB has determined that it would not be
appropriate to proceed with the establishment of the proposed Tulocay
American viticultural area for the following reasons:
The comments submitted, and the evidence and other
information available, raise a substantial question as to whether there
is a sufficient basis to conclude that the geographical area described
in the petition is locally or nationally known as ``Tulocay.'' While
evidence suggesting the name ``Coombsville'' is a factor in this
regard, the evidence currently available would not, standing alone,
support the establishment of a viticultural area under the names
``Coombsville'' or ``Coombsville District.'' Moreover, the evidence
does not support the name
[[Page 34905]]
``Tulocay District,'' and currently there is no petition requesting the
establishment of a viticultural area in the subject area using a
variation of Tulocay, such as Tulocay District, or any other name, such
as Coombsville or Coombsville District. It is noted that these findings
do not preclude future consideration of a petition, supported by
sufficient name evidence, proposing the establishment of a viticultural
area in the subject area using a name other than ``Tulocay.''
Consumer confusion could ensue regarding the identity and
quality of wines bearing the term ``Tulocay'' if that term, which for
more than 30 years has been identified with wines produced by Tulocay
Winery from grapes grown in multiple California counties, were suddenly
to disappear as a brand name of Tulocay Winery products and be used on
labels for wines produced by other wineries primarily from grapes grown
within a small portion of Napa County. Such consumer confusion
resulting from the approval of the proposed Tulocay AVA is contrary to
the purpose of the FAA Act.
For the reasons stated above, the proposal to establish the Tulocay
viticultural area is withdrawn.
Signed: March 17, 2008.
John J. Manfreda,
Administrator.
Approved: June 13, 2008.
Timothy E. Skud,
Deputy Assistant Secretary (Tax, Trade, and Tariff Policy).
[FR Doc. E8-13858 Filed 6-18-08; 8:45 am]
BILLING CODE 4810-31-P
