Daily Rules, Proposed Rules, and Notices of the Federal Government
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 FAA Act pursuant to section 1111(d) of the Homeland Security Act of 2002, codified at 6 U.S.C. 531(d). The Secretary has delegated various authorities through Treasury Department Order 120-01 (Revised), dated January 21, 2003, to the TTB Administrator to perform the functions and duties in the administration and enforcement of this law.
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 the preparation and submission of petitions for the establishment or modification of American viticultural areas and lists the approved American viticultural areas.
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 having distinguishing features as described in part 9 of the regulations and a name and a delineated boundary as established 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.
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 9.12 of the TTB regulations (27 CFR 9.12) prescribes standards for petitions for the establishment or modification of American viticultural areas. Such petitions must include the following:
• Evidence that the area within the proposed viticultural area boundary is nationally or locally known by the viticultural area name specified in the petition;
• An explanation of the basis for defining the boundary of the proposed viticultural area;
• A narrative description of the features of the proposed viticultural area that affect viticulture, such as climate, geology, soils, physical features, and elevation, that make it distinctive and distinguish it from adjacent areas outside the proposed viticultural area boundary;
• A copy of the appropriate United States Geological Survey (USGS) map(s) showing the location of the proposed viticultural area, with the boundary of the proposed viticultural area clearly drawn thereon; and
• A detailed narrative description of the proposed viticultural area boundary based on USGS map markings.
In August 2008, TTB received a petition from Rachel E. Martin, executive vice president of Boxwood Winery in Middleburg, Virginia, proposing the establishment of the “Middleburg Virginia” American viticultural area in portions of Loudoun and Fauquier Counties in northern Virginia. The petition states that the proposed viticultural area derives its name from the Town of Middleburg, Virginia, and it is bounded by the Potomac River to the north and by mountains to the east, south, and west. The petition notes that the proposed viticultural area covers approximately 190-square miles (121,600 acres) and contains 229 acres of commercial vineyards and 12 wineries.
In July 2009, Ms. Martin submitted to TTB a modification to the proposed Middleburg Virginia viticultural area boundary line in order to include several additional vineyards within the proposed viticultural area. The modification increased the size of the proposed viticultural area by 1,920 acres in the Burnt Mill Run area, east of Zulla, on the USGS Rectortown map. According to the petitioner, the additional acreage has the same distinguishing features as the originally proposed viticultural area. With the petitioner's modified boundary line, the proposed Middleburg Virginia viticultural area contains 251 acres of commercial grape growing in 10 vineyards and 14 wineries. With the petitioner's agreement, TTB also made several small modifications to the originally-proposed boundary line in order to better match the provided maps with the petition's narrative boundary description. These changes were made in the vicinity of the town of Marshall and Little Cobbler Mountain and near the hamlet of Airmont along Route 734 and added approximately 5 square miles (3,200 acres) to the proposed viticultural area. TTB notes that the proposed viticultural area does not overlap or otherwise affect any established or proposed American viticultural area.
TTB published Notice No. 123 in the
In Notice No. 123, TTB solicited comments on the accuracy of the name, boundary, climatic, and other required information submitted in support of the petition. The comment period was scheduled to close on January 9, 2012. During the comment period, the Loudoun Wine Growers Association submitted a request to extend the comment period (comment 12), claiming that their members had been
Excluding the two comments received regarding the extension of the comment period, TTB received 26 comments in response to Notice No. 123 during both the original and extended comment period. The commenters included 17 self-identified wine industry members, including growers and vintners; 3 commenters who did not list any affiliation; 2 food and wine writers; Ms. Martin, the petitioner, who submitted two additional comments; Virginia's Secretary of Agriculture and Forestry, on behalf of the Commonwealth; and a soil scientist.
Fifteen of the commenters unequivocally support the proposed Middleburg Virginia viticultural area (comments 1, 4, 6, 7, 9, 11, 16, 17, 18, 19, 20, 21, 22, 24, and 25). These commenters included 10 self-identified wine industry members, including growers, vintners, and a wine exporter; two food and wine writers; the Secretary of Agriculture and Forestry for the Commonwealth of Virginia; and two commenters who stated no affiliation. Several of the comments specifically supported the evidence that was presented in the petition and described in Notice No. 123. For instance, comment 7, from a winery operator within the petitioned-for viticultural area, states that the petition was “well researched” and accurately describes the “unique geographical and agricultural” nature of the region. Comment 9, from a local winemaker and grape grower, applauds the petition as “the most comprehensive I have ever seen related to a Virginia AVA” and believes it effectively describes the microclimate of the area. Comment 17, from a grower to the west and outside of the petitioned-for viticultural area, notes that “[the] features of the lands identified in this AVA are clearly distinctive from the valley in which we grow grapes.” Comment 22, from a local grower, supports the boundaries of the petitioned-for viticultural area, stating that “[the] area defined accurately depicts the consistent grape-growing area, which varies measurably from the surrounding area.” In comment 24, a wine writer states that the petitioned-for viticultural area “comprises a contiguous and distinct microclimate that is distinct from the surrounding area.” Finally, comment 25, from a viticultural consultant who has worked with growers in the region, believes the petitioned-for viticultural area should be established and become “one of what should eventually be many AVAs based on specific geographic parameters,” and describes the varied elevations within the boundaries as resembling the elevation variations found within the established Napa Valley and Monticello viticultural areas.
An additional comment (comment 26) supports the establishment of the proposed viticultural area and also requests a boundary modification to include the commenter's vineyard in the proposed viticultural area. The modification request is discussed later in this document.
Comment 27 expressly opposes the establishment of the proposed Middleburg Virginia viticultural area because “[t]here are sufficient viticultural areas,” and many of the existing viticultural areas are “underutilized.” The comment states that “[a]dding yet another designation reduces the intrinsic value of said designation” and urges rejecting “this and future applications.”
TTB notes that under its regulations the number of established viticultural areas and utilization rate of the designations are not factors that determine whether or not a viticultural area should be established. TTB does not believe these factors are determinative as to whether the use of a viticultural area name on a label as an appellation of origin would provide adequate information about the identity and origin of the product or would be misleading.
Alex Blackburn, the soil scientist whose analysis was relied upon and cited in the petition, also submitted a comment (comment 5) to clarify two statements attributed to him in the petition and Notice No. 123. Mr. Blackburn first explained that although the topography section of Notice No. 123 states that fairly level terrain, like that found in the southern region of the proposed viticultural area, is an important characteristic for a vineyard site, steeper parcels can be prepared and managed for use as vineyards and may have “significant advantages concerning the production of quality grapes.” Secondly, Mr. Blackburn noted that the soils section of Notice No. 123 describes the Purcellville, Tankerville, Philomont, and Middleburg soils of the proposed viticultural area as being “among the best in the Blue Ridge Physiographic Province for fruit production, and grapevines grown in these soils have better quality with few vigor problems” because they are “lower in natural fertility and in available water capacity” than the soils of the region outside the proposed viticultural area. Mr. Blackburn clarified that while the statement may apply to the Tankerville and Philomont soils, Purcellville soils “are often vigorous due to high natural fertility and plant available water,” and the Middleburg soils are very deep and fertile but are located in drainage swales that are generally not recommended for the production of quality grapes.
Section 9.12(a)(3) requires a petition to include a description of the common features of a proposed viticultural area and how those features are distinctive from the features associated with adjacent areas outside the proposed viticultural area boundary. TTB agrees that Mr. Blackburn's comments clarify the statements attributed to him in the petition and Notice No. 123, but these clarifications do not affect the evidence supporting the conclusion that the soil and terrain within the proposed viticultural area are distinguishable from the surrounding area.
Four comments from local vineyard owners (comments 3, 8, 10, and 14) object to the name of the proposed viticultural area, claiming that the name “Middleburg Virginia” does not represent the entire region within the proposed viticultural area, particularly the portion within northern Loudoun County. TTB notes that none of these comments expressly opposes the establishment of the proposed viticultural area.
Comment 3 proposes the alternative names of “Northern Virginia” and “Greater Loudoun” and suggests that the name “Middleburg Virginia” might be appropriate if the size of the proposed viticultural area was reduced to encompass a much smaller area around the town of Middleburg. Comment 8 states that the region of northern Loudoun County has “no historical or geographical association with the town of Middleburg,” and offered the name “Northern Piedmont” as an alternative. Comment 10 states that the proposed viticultural area is too
In response to these comments, TTB notes that § 9.12(a)(1) requires a petition to provide evidence that currently and directly associates a name with the proposed viticultural area, and that the area be known locally or nationally by that name. As stated in Notice No. 123, the evidence provided with the petition indicates that local residents and businesses within the proposed viticultural area use the name “Middleburg Virginia,” and that the name “Middleburg Virginia” accurately describes the general region in which the proposed viticultural area is located rather than only the town of Middleburg. Although the three commenters claim that the proposed “Middleburg Virginia” name does not apply to the entire proposed viticultural area, they offered no evidence to refute the name evidence provided in the petition and Notice No. 123. Additionally, the commenters did not submit any evidence in support of the alternative proposed names that they assert more accurately describe the entire proposed viticultural area than the “Middleburg Virginia” name.
Four comments (comments 2, 10, 15 and 26) suggest modifications to the proposed boundary line. Comment 2 suggests adjusting the proposed western portion of the boundary line to coincide with the eastern boundary of the established Shenandoah Valley viticultural area farther to the west, in order to eliminate a 3-mile wide “gap” between the proposed viticultural area and the Shenandoah Valley viticultural area. Comment 2 further states that the boundary modification would be justified because the soil characteristics and growing conditions of the “gap” are similar to those within proposed viticultural area.
Comment 10 claims the proposed viticultural area is too heterogeneous, and the hillier, mountainous areas within the proposed boundary should be removed because they have a different topography from the rest of the proposed viticultural area. Comment 15 also suggests modifying the proposed boundary line to remove the slopes, peaks, and ridges of the mountains within the proposed viticultural area because these higher, steeper elevations are “separately distinct features from the rolling plains of Middleburg and its surrounding countryside.”
One comment (comment 26) supports the establishment of the proposed Middleburg Virginia viticultural area and also requests that the boundary be adjusted to include the commenter's vineyard, which is adjacent to the eastern portion of the proposed boundary that follows State Route 662. Ms. Martin, the petitioner, in comment 28 confirmed that the climate, topography, geology, and soil of the property in question are consistent with the proposed viticultural area, and she stated that she supports a modification of the boundary to include the commenter's property.
Section 9.12(a)(2) of the TTB regulations requires petitions to explain the basis for defining the boundary of the proposed viticultural area and to describe the commonalities within the boundary and explain how the region outside the proposed boundary differs. As noted in Notice No. 123, the boundary evidence included in the petition provided an adequate basis for the proposed boundary. Comments 2, 10, and 15 recommend significant boundary modifications; however, the commenters did not provide data and evidence to support their assertions and rebut the evidence submitted with the petition. With regard to comment 2, TTB notes that the terrain in the gap between the proposed viticultural area and the established Shenandoah viticultural area appears to be more mountainous and rugged than that of the majority of the proposed viticultural area, with higher elevations and steeper slopes that run in a north-south direction, compared to the gentle, rolling hills within the proposed viticultural area.
With regard to the request in comment 26 to modify the eastern portion of the proposed boundary that follows State Route 662 so that the commenter's vineyard would be included within the viticultural area, there are several factors that support this proposed boundary change. First, the commenter's property is directly adjacent to the boundary of the proposed viticultural area. TTB notes that the proposed boundary was based in part on marked features on USGS maps that approximately track the distinguishing feature of soil types; the location and extent of a particular soil type can only be approximated on the USGS maps used for boundary directions. Second, the petitioner confirmed that the property shares the same distinguishing features as the region within the proposed viticultural area. Finally, the boundary modification adds only 330 acres (0.5 square miles). Accordingly, TTB concludes that the boundary should be modified to include the commenter's vineyard.
After careful review of the petition and the comments received in response to Notice No. 123, TTB finds that the evidence provided by the petitioner supports the establishment of the approximately 198-square mile Middleburg Virginia viticultural area. Accordingly, under the authority of the FAA Act, section 1111(d) of the Homeland Security Act of 2002, and part 4 of the TTB regulations, TTB establishes the “Middleburg Virginia” viticultural area in Loudoun and Fauquier Counties, Virginia, effective 30 days from the publication date of this document.
See the narrative boundary description of the viticultural area in the regulatory text published at the end of this notice.
As discussed earlier in this document, the final boundary description of the viticultural area differs from the description in the proposed rule in order to incorporate the additional 330 acres. Paragraphs (c)(8) through (12) have been changed to expand the southern boundary slightly to include a vineyard that was adjacent to and outside of the viticultural area boundary proposed in Notice No. 123; subparagraphs (c)(9) through (c)(42) in the proposed rule were redesignated as paragraphs (c)(13) through (c)(46) in this final rule to accommodate the boundary modification.
The petitioner provided the required maps, and TTB lists them below in the regulatory text. The Leesburg Quadrangle map was added to accommodate the boundary modification described above.
Part 4 of the TTB regulations prohibits any label reference on a wine that indicates or implies an origin other than the wine's true place of origin. With the establishment of this viticultural area, its name, “Middleburg Virginia,” is
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. Similarly, if the viticultural area name or other viticulturally significant term appears in another reference on the label in a misleading manner, the bottler would have to obtain approval of a new label.
Different rules apply if a wine has a brand name containing a viticultural area name or other term of viticultural significance that was used as a brand name on a label approved before July 7, 1986. See 27 CFR 4.39(i)(2) for details.
TTB certifies that this regulation will not have a significant economic impact on a substantial number of small entities. The regulation imposes no new reporting, recordkeeping, or other administrative requirement. Any benefit derived from the use of a viticultural area name would be the result of a proprietor's efforts and consumer acceptance of wines from that area. Therefore, no regulatory flexibility analysis is required.
This rule is not a significant regulatory action as defined by Executive Order 12866. Therefore, it requires no regulatory assessment.
Karen A. Thornton of the Regulations and Rulings Division drafted this final rule.
For the reasons discussed in the preamble, TTB amends title 27, chapter I, part 9, Code of Federal Regulations, as follows:
27 U.S.C. 205.
(1) Harpers Ferry Quadrangle, West Virginia-Virginia-Maryland, 1996;
(2) Point of Rocks Quadrangle, Maryland-Virginia, 1970, photoinspected 1981;
(3) Waterford Quadrangle, Virginia-Maryland, 1970, photorevised 1984;
(4) Leesburg Quadrangle, Virginia-Maryland, 1994;
(5) Lincoln Quadrangle, Virginia-Loudoun Co., 1970, photoinspected 1981;
(6) Middleburg Quadrangle, Virginia, 1968, photorevised 1978, photoinspected 1981;
(7) Rectortown Quadrangle, Virginia, 1970, photoinspected 1981;
(8) Marshall Quadrangle, Virginia-Fauquier Co., 1970, photorevised 1983;
(9) Orlean Quadrangle, Virginia, 1970, photorevised 1983;
(10) Upperville Quadrangle, Virginia, 1970, photorevised 1983;
(11) Linden Quadrangle, Virginia, 1994;
(12) Ashby Gap Quadrangle, Virginia, 1970, photorevised 1978, photoinspected 1981;
(13) Bluemont Quadrangle, Virginia, 1970, photorevised 1979; photoinspected 1981; and
(14) Purcellville Quadrangle, Virginia-Loudoun Co., 1970, photorevised 1984.
(1) The beginning point is on the Harpers Ferry map at the intersection of the easternmost boundary line of the Harpers Ferry National Historical Park and the south bank of the Potomac River in Loudoun County, Virginia. From the beginning point, follow the south bank of the Potomac River easterly (downstream) for approximately 8.2 miles, crossing onto the Point of Rocks map, to the mouth of Catoctin Creek; then
(2) Proceed southwesterly (upstream) along the meandering Catoctin Creek for approximately 4 miles to State Route 663 (locally known as Taylorstown Road) at Taylorstown; then
(3) Proceed easterly on State Route 663 for approximately 0.1 mile to State Route 665 (locally known as Loyalty Road) in Taylorstown; then
(4) Proceed southerly on State Route 665 for approximately 5.4 miles, crossing onto the Waterford map, to State Route 662 on the south side of Waterford; then
(5) Proceed southerly on State Route 662 for approximately 2.5 miles to State Route 9 (locally known as Charles Town Pike) near Paeonian Springs; then
(6) Proceed southerly on State Route 9 (Charles Town Pike) for approximately 0.7 mile, crossing over State Route 7 (locally known as Harry Byrd Highway), to State Business Route 7 (locally known as E. Colonial Highway); then
(7) Proceed westerly on State Business Route 7 (E. Colonial Highway) for approximately 0.4 mile to the continuation of State Route 662 (locally known as Canby Road); then
(8) Proceed southerly on State Route 662 (Canby Road) for approximately 0.75 miles to an unnamed, unimproved road near the marked 701-foot elevation; then
(9) Proceed southeasterly in a straight line for approximately 0.4 miles, crossing onto the Leesburg map, to the northern terminus of an unnamed light-duty road known locally as Gore Lane; then
(10) Proceed southerly along Gore Lane for approximately 0.7 miles to State Route 820; then
(11) Proceed southwesterly along State Route 820 for approximately 0.68 miles, crossing onto the Lincoln map, to State Route 622 (Canby Road); then
(12) Proceed southwesterly on State Route 622 (Canby Road) for approximately 2 miles to the intersection with State Route 729; then
(13) Proceed southwesterly on State Route 729 for approximately 2.8 miles to the State Route 729 bridge at North Fork Creek; then
(14) Proceed southeasterly (downstream) along the meandering North Fork Creek for approximately 4 miles to the confluence of North Fork Creek with Goose Creek; then
(15) Proceed southwesterly (upstream) along the meandering Goose Creek for approximately 5.6 miles to State Route 734 at Carters Bridge; then
(16) Proceed southeasterly on State Route 734 for approximately 2.4 miles, crossing onto the Middleburg map, to State Route 629; then
(17) Proceed southerly on State Route 629 for approximately 1 mile to the road's intersection with U.S. Route 50 at Benchmark (BM) 341 at Dover, then continue in a straight line due south for approximately 150 feet to the Little River; then
(18) Proceed southwesterly (upstream) along the meandering Little River for approximately 8 miles to the State Route 626 bridge at Halfway; then
(19) Proceed northwesterly on State Route 626 for approximately 0.3 mile to State Route 706, and then continue northwesterly on State Route 706 for approximately 1.6 miles, crossing onto the Rectortown map, to Burnt Mill Run; then
(20) Proceed west-southwesterly (upstream) along Burnt Mill Run for approximately 0.4 mile to State Route 705; then
(21) Proceed south-southwesterly on State Route 705 for approximately 0.5 mile to State Route 715; then
(22) Proceed west-northwesterly on State Route 715 for approximately 0.4 mile to State Route 709 at Zulla; then
(23) Proceed south-southwesterly on State Route 709 for approximately 4.6 miles, crossing onto the Marshall map, to Interstate Highway 66 (0.6 mile south of Brookes Corner); then
(24) Proceed west-northwesterly on Interstate Highway 66 for approximately 4.0 miles, crossing onto the Orlean map, to State Route 732 (locally known as Ramey Road); then
(25) Proceed westerly on State Route 732 approximately 2 miles to State Route 731 (locally known as Ashville Road) near Ashville; then
(26) Proceed northwesterly in a straight line, crossing onto the Upperville map, to the marked 1,304-foot peak on Little Cobbler Mountain, then northerly in a straight line to the marked 1,117-foot peak on Little Cobbler Mountain, and then continue northerly in a straight line to the marked 771-foot peak near the northern end of Little Cobbler Mountain; then
(27) Proceed west in a straight line for approximately 2.7 miles to the 595-foot elevation point on State Route 724, southeast of Markham, and continue west in a straight line for approximately 3.1 miles, crossing onto the Linden map, to State Route 726 and an unnamed side road (near a cemetery), approximately 0.7 mile southwest of the intersection of State Route 726 and State Route 55 (near Belle Meade); then
(28) Proceed northeasterly along State Route 726 for approximately 0.7 mile to State Route 55; then
(29) Proceed east-northeast in a straight line for approximately 1.7 miles to State Route 688 at BM 629 in Wildcat Hollow; then
(30) Proceed northerly and then northeasterly on State Route 688 for approximately 5.5 miles, crossing over and back between the Linden and Upperville maps and then continuing on the Upperville map, to U.S. Route 17; then
(31) Proceed northerly on U.S. Route 17 for approximately 2.0 miles, crossing onto the Ashby Gap map, to U.S. Route 50 (just east of Paris); then
(32) Proceed east-northeasterly in a straight line for approximately 1.5 miles to the marked 797-foot elevation point located along State Route 618 at a fork in the road approximately 0.65 miles north of U.S. Route 50; then
(33) Proceed southeasterly in a straight line for approximately 0.9 mile to U.S. Route 50 at BM 625, which is located at a bridge over an unnamed branch of Panther Skin Creek; then
(34) Proceed south-southeasterly in a straight line for approximately 2.9 miles, crossing onto the Upperville map, to the intersection of State Routes 712 and 710 at Kerfoot; then
(35) Proceed southeasterly on State Route 710 for approximately 2.5 miles, crossing onto the Rectortown map, to the State Route 710 bridge over Goose Creek; then
(36) Proceed northeasterly (downstream) along the meandering Goose Creek for approximately 10.9 miles to State Route 626 at Bentons Bridge; then
(37) Proceed northwesterly on State Route 626 for approximately 4.0 miles, crossing onto the Bluemont map, to State Route 630 at Unison; then
(38) Proceed northeasterly on State Route 630 for approximately 0.75 mile to Dog Branch; then
(39) Proceed northwesterly along Dog Branch for approximately 1.75 miles to State Route 719; then
(40) Proceed north-northeasterly on State Route 719 for approximately 2 miles to State Route 734 at Airmont; then
(41) Proceed east-southeasterly on State Route 734 for approximately 0.7 mile to State Route 735; then
(42) Proceed northeasterly on State Route 735 for approximately 2 miles to State Route 725; then
(43) Proceed north-northeasterly in a straight line for approximately 4.4 miles, crossing over the northwest corner of the Lincoln map and then onto the Purcellville map, to the intersection of State Routes 711 and 690, (northwest of Purcellville); then
(44) Proceed north-northeasterly on State Route 690 for approximately 3.1 miles to State Route 9, then proceed east on State Route 9 for approximately 0.2 mile to the continuation of State Route 690, then proceed northerly on State Route 690 for approximately 5.3 miles, crossing onto the Harpers Ferry map, to the road's intersection with the 600-foot elevation line immediately south of the road's marked 592-foot elevation point (located 0.75 mile east-northeast of the radio facilities at the 1,424-foot peak of Short Hill Mountain); then
(45) Proceed northerly along the 600-foot elevation line for approximately 4 miles to the Harpers Ferry National Historical Park south boundary line; then
(46) Proceed east and north approximately 0.75 mile along the Harpers Ferry National Historical Park boundary line, returning to the beginning point.