[Federal Register Volume 66, Number 106 (Friday, June 1, 2001)]
[Rules and Regulations]
[Pages 29695-29698]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-13821]


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DEPARTMENT OF THE TREASURY

Bureau of Alcohol, Tobacco and Firearms

27 CFR Part 9

[T.D. ATF-456 ; Re: Notice No. 882]
RIN 1512-AA07


Diamond Mountain District Viticultural Area (99R-223P)

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

ACTION: Treasury decision, final rule.

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SUMMARY: This Treasury decision will establish a viticultural area in 
Napa County, California, to be known as ``Diamond Mountain District.'' 
This viticultural area is a result of a petition submitted by Rudy von 
Strasser of Von Strasser Winery on behalf of the Diamond Mountain 
Appellation Committee, representing 15 growers and vintners in the 
proposed area.

EFFECTIVE DATE: Effective July 31, 2001.

FOR FURTHER INFORMATION CONTACT: Jennifer Berry, Bureau of Alcohol, 
Tobacco and Firearms, 111 W. Huron Street, Room 219, Buffalo, New York 
14202-2301, (716) 551-4048.

SUPPLEMENTARY INFORMATION:

1. Background on Viticultural Areas

What Is ATF's Authority To Establish a Viticultural Area?

    ATF published Treasury Decision ATF-53 (43 FR 37672, 54624) on 
August 23, 1978. This decision revised the regulations in 27 CFR part 
4, Labeling and Advertising of Wine, to 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 27 CFR 
part 9, American Viticultural Areas, for the listing of approved 
American viticultural areas, the names of which may be used as 
appellations of origin.

What Is the Definition of an American Viticultural Area?

    An American viticultural area is a delimited grape-growing region 
distinguishable by geographic features. Viticultural features such as 
soil, climate, elevation, topography, etc., distinguish it from 
surrounding areas.

What Is Required To Establish a Viticultural Area?

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

2. Rulemaking Proceeding

Petition

    Rudy von Strasser of Von Strasser Winery petitioned ATF for the 
establishment of a viticultural area in Napa County, California, to be 
called ``Diamond Mountain.'' The petition was filed on behalf of the 
Diamond Mountain Appellation Committee, whose 15 growers and vintners 
represent 87 percent of the total vineyard holdings in the viticultural 
area. The proposed viticultural area is located entirely in Napa 
County, California and encompasses approximately 5,000 acres, of which 
approximately 450 acres are planted to vineyards.

Notices of Proposed Rulemaking

    A Notice of Proposed Rulemaking, Notice No. 882, was published in 
the Federal Register on September 29, 1999, requesting comments from 
all interested persons concerning the proposed viticultural area. The 
comment period was to close on November 29, 1999. On November 15, 1999, 
ATF received a request from Fred and Mary Constant of Diamond Mountain 
Vineyard to extend the comment period an additional 60 days. Diamond 
Mountain Vineyard is located within both Napa and Sonoma Counties, 
partially within the boundaries proposed for the Diamond Mountain 
viticultural area. According to the winery, it had been unable to get 
timely and complete information on the specifics of the proposal and 
therefore it needed additional time to prepare its comments. In view of 
this, on November 26, 1999, ATF published Notice No. 886 extending the 
comment period until January 28, 2000.

Comments

    Thirty-nine comments were received in response to Notice 882. 
Thirty-seven of the comments favored adoption of the viticultural area 
as proposed. Twenty-five of these specifically supported the use of the 
Napa and Sonoma county line as one of the boundary lines for proposed 
area. These commenters maintained that because the name ``Diamond 
Mountain'' has always been associated with Napa Valley, the boundaries 
should not encompass any areas outside Napa County.
    Fred and Mary Constant of Diamond Mountain Vineyards submitted two 
comments proposing two changes to the proposed viticultural area. 
First, they proposed changing the name to ``Diamond Mountain 
District.'' The Constants argued that because the proposed area does 
not physically encompass all of Diamond Mountain, as identified on the 
U.S.G.S. map included in the petition, the name ``Diamond Mountain'' 
could be confusing. The Constants, who own a trademark for the name 
``Diamond Mountain Vineyard'', also felt that ``Diamond Mountain 
District'' would reduce confusion and conflicts with their trademark, 
their winery name, and other Diamond Mountain trademarks. As evidence 
for the use of this name, the Constants submitted two documents in 
which ``District'' is used in association with ``Diamond Mountain''. 
One, a 1913 school board document, twice referred to the Diamond 
Mountain school district. The other, an article from the 12/4/99 issue 
of the Wine Business Insider on the proposed Diamond Mountain 
viticultural area, used the phrase ``Diamond Mountain District''.
    The Constants also proposed amending the southwestern boundary of 
the viticultural area to include their Sonoma county property. Their 
vineyard, Diamond Mountain Vineyard, straddles the Napa and Sonoma 
county line. Fifty-five of its acres are located in Napa County within 
the proposed boundaries of the Diamond Mountain viticultural area, 
while 15 of its acres are in Sonoma county, just outside the proposed 
boundaries. The Constants argued that their Sonoma property is on 
Diamond Mountain and should therefore be included in any viticultural 
area bearing its name. Referring to the U.S.G.S. map submitted by the 
petitioners (Calistoga, CA 1993, 1:24,000), they pointed out that much 
of

[[Page 29696]]

Diamond Mountain, including its peak, is actually in Sonoma County.
    Their proposal was supported by their assertion that the climate 
and soil of their Sonoma property is indistinguishable from that of 
their Napa property. They stated that it is unlikely for climate to 
vary dramatically over a distance of a few hundred feet on the same 
side of a mountain. The elevation of their Sonoma property is not an 
issue, according to the Constants, because the highest part of their 
Sonoma property is no higher than the highest part of their Napa 
property. The soil, they asserted, is also consistent between their 
Napa and Sonoma parcels. The Constants did not provide any evidence 
supporting this claim.
    Additionally, the Constants stated that their vineyard, originally 
planted to vines around 1900 by Andrew Rasmussen, is one of the oldest 
on Diamond Mountain. They submitted several pieces of evidence which 
mention the Rasmussen vineyards as located on Diamond Mountain near the 
Napa-Sonoma County line. Because of the historical importance of their 
vineyard, the Constants felt it should be included in the viticultural 
area in its entirety.
    Finally, the Constants stated that the division of their vineyards 
by the viticultural area boundaries will create an administrative and 
financial burden for them by forcing them to track the origin of their 
grapes.

Petitioners' Response

    The petitioners, in counter comments, initially disagreed with both 
the proposed name change and the proposal to include Sonoma County 
property in the viticultural area, calling the evidence cited for these 
changes weak.
    On January 22, 2001, the petitioners wrote to ATF stating that they 
had reconsidered and now wished to change the name of the viticultural 
area to ``Diamond Mountain District.'' However, they stated that they 
were against any change in the proposed boundaries.
    While the petitioners acknowledged that Diamond Mountain's peak is 
in Sonoma County, they argued that historical and current usage of the 
name is strongly associated with Napa, not Sonoma, County. The 
petitioners submitted, as part of either the petition or counter 
comments, over 40 articles referencing Diamond Mountain as a grape 
growing area in Napa Valley or Napa County. The petitioners felt that 
including Sonoma County land in a viticultural area associated with 
Napa Valley would be confusing to the public.
    The petitioners also submitted, as part of their counter comments, 
a document written by wine historian William F. Heintz titled ``Diamond 
Mountain--An Overview of its History & the Rasmussens on Diamond 
Mountain Napa County, California.'' Mr. Heintz found historical records 
indicating that ``Diamond Mountain'' was a Napa County region name and 
road name before it was used for the mountain peak. According to Mr. 
Heintz's research, the earliest use of the name on a Sonoma County map 
was in 1970. Thus, the petitioners argued, ``Diamond Mountain'' is 
historically a Napa County name.
    Mr. Heintz also researched the history of the Rasmussen's vineyards 
by examining Napa and Sonoma County assessment records and interviewing 
individuals familiar with the Rasmussen/Constant property. He concluded 
that the Rasmussens never grew grapes on the Sonoma portion of their 
property. Two commenters concurred, stating their personal observations 
of the property in question showed that, prior to the Constants' 
ownership, it was heavily forested and contained no evidence of old 
grape plantings.
    Finally, the petitioners argued that the division of the Constants' 
vineyards by the viticultural area boundary would not create a 
financial or administrative burden. They pointed out that this boundary 
is already one of the boundaries of the Napa Valley viticultural area. 
They argued that the Constants knowingly purchased a parcel in Sonoma, 
on the other side of the present Napa Valley boundary, thus choosing to 
divide their vineyard holdings. Their financial and administrative 
burden, the petitioners maintained, would not change with the 
establishment of the proposed Diamond Mountain District boundaries.

ATF Analysis of Comments

    After careful review of the comments, ATF has concluded that the 
evidence provided supports the creation of the viticultural area with 
the name ``Diamond Mountain District'' and with the boundaries as 
originally proposed.

Name

    ATF finds that sufficient evidence has been submitted to support 
the name ``Diamond Mountain District.'' In addition to insuring that 
the viticultural name is that by which the area is locally and/or 
nationally known, ATF must also insure that the name is not false or 
misleading to the consumer. While the evidence shows that the area has 
also been called ``Diamond Mountain'', ATF finds that this name could 
be confused with the Constants ' winery, Diamond Mountain Vineyards. 
ATF therefore feels that the name ``Diamond Mountain District'' is a 
better choice. This name is known to refer to the viticultural area and 
is not misleading.

Boundaries

    ATF finds that the evidence provided by Fred and Mary Constant is 
not sufficient to change the boundaries as originally proposed. In 
order for ATF to adopt their proposal, the evidence would need to show 
that: (1) Their Sonoma County property is recognized by consumers and 
the wine industry as part of the viticultural area, and (2) their 
Sonoma County property shares geographic characteristics with the 
viticultural area. Both of these elements must be proved by the 
evidence for the proposal to be adopted.
    First, the Constants did not establish that their Sonoma County 
property is recognized as part of the viticultural area. To provide 
name recognition and boundary evidence, the petitioners submitted over 
forty articles from newspapers, magazines, and reference books 
referring to Diamond Mountain as a wine region in Napa Valley or Napa 
County. None of these articles mention wineries or vineyards in Sonoma 
County.
    Both the petitioners and the Constants referenced an article from 
the January-February 1977 issue of Connoisseurs' Guide to California 
Wine titled ``Napa Valley Appellations.'' This article identifies 
Diamond Mountain as one of several Napa Valley areas having unique 
grape-growing characteristics. In their comments, the Constants quote 
this article, ``We would identify the whole mountain area west of the 
Valley and north of Spring Mountain as Diamond Mountain,'' and argue 
that it supports the inclusion of their vineyard in the viticultural 
area. However, because of the vagueness of this description, and the 
fact that this article is clearly referencing Napa Valley areas, ATF 
does not find this article to be sufficient evidence for the Constants' 
proposed boundaries.
    Both the Constants and the petitioners presented arguments on 
whether the Rasmussens grew grapes on the Constants' Sonoma parcel on 
Diamond Mountain. The petitioners submitted several pieces of evidence 
that persuasively indicated that while the Rasmussens did grow grapes 
on their Napa property, they did not grow any on their Sonoma property. 
The Constants' evidence was more general and merely established the 
site of the Rasmussens' property, and not that they

[[Page 29697]]

grew grapes in Sonoma County. After analysis of the combined evidence, 
ATF finds that the Sonoma County portion of Diamond Mountain does not 
share the viticultural history of the Napa County portion.
    Second, the Constants did not establish that that their Sonoma 
County property shares geographic characteristics with the proposed 
viticultural area. It is indisputable that the geographic feature 
called ``Diamond Mountain'', as depicted on the petitioners'' U.S.G.S. 
map, includes part of Sonoma County and the Constants' vineyard. 
However, ATF has created other viticultural areas named for a mountain 
that do not encompass the entire mountain. In many cases, separate 
areas of a mountain may have varying climates, soils, or other 
geographic features, thus creating different grape growing conditions. 
For example, when establishing the Bell Mountain viticultural area 
(T.D. ATF-238), ATF cited the soils and topography in its decision to 
include only the south and southwestern slopes of Bell Mountain in the 
viticultural area. In another example, the higher elevations of Sonoma 
Mountain were not included in the Sonoma Mountain viticultural area 
(T.D. ATF-196) because of climate and topography. In cases such as 
these, the viticultural area should not encompass the entire mountain 
since geographic features (climate, soil, elevation, physical features) 
should be similar within the viticultural area. In the case of Diamond 
Mountain District, the petitioners have submitted persuasive evidence 
that the soil and climate in the Napa County part of Diamond Mountain 
are different from those in the adjacent part of the mountain in Sonoma 
County. In view of this, the evidence must show that the Constants' 
Sonoma parcel not only is physically on Diamond Mountain, but also 
shares similar soil and climatic conditions with the petitioner's 
proposed viticultural boundaries. Because the Constants have not 
submitted any evidence regarding the climate or soils of their proposed 
boundaries, ATF cannot determine if they are similar to those in the 
proposed viticultural boundaries proposed by the petitioner.
    Taken as a whole, the historic and current evidence regarding the 
boundaries supports the original boundaries proposed by the 
petitioners. No evidence was present that associated Sonoma County or 
the Constants' Sonoma vineyard with the grape growing area known as 
``Diamond Mountain District.'' ATF's conclusion is that the Diamond 
Mountain District is locally and nationally known as referring to that 
part of Diamond Mountain in Napa County. This, along with the 
petitioners' climate and soil evidence, supports designating only the 
Napa County part of Diamond Mountain as the viticultural area ``Diamond 
Mountain District.''

Evidence That the Name of the Area Is Locally or Nationally Known

    The Diamond Mountain District has been home to vineyards and 
wineries since the 1860's. According to the petitioner's evidence, a 
Mr. Joseph Schram planted his first vines as early as 1863 and had a 
hundred acres of vineyards by 1892.
    According to the petitioner, the evolution of Diamond Mountain into 
a Napa Valley regional name began in the early decades of the 20th 
century, with Diamond Mountain School and Diamond Mountain Road being 
the first features in the region to bear the name. The naming of the 
school took place in 1909, with the major access road in the region 
designated as Diamond Mountain Road shortly thereafter. The petitioner 
has also presented substantial evidence that the Diamond Mountain 
District began to gain national renown in the early 1970's, as 
expanding consumer interest in California wines resulted in new 
vineyards, new wineries and a greater awareness of regional wine 
character. As evidence for this national name, the petitioner included 
an excerpt from the second edition of The Wines of America by Leon 
Adams that states, ``Diamond Mountain, like Mt. Veeder and Spring 
Mountain also on the west side of Napa Valley, is regarded as a 
viticultural district separate from the rest of Napa Valley.''

Historical or Current Evidence That the Boundaries of the Viticultural 
Area Are as Specified in the Petition

    According to the petitioner, precise boundaries for the region 
being proposed have never been delineated. The evidence submitted, 
however, shows that the Diamond Mountain District's viticultural 
history and identity are strongly associated with Napa Valley. For this 
reason, the boundaries of the viticultural area are entirely within 
Napa County. According to the petitioner, the petition took a 
conservative approach to establishing boundaries for the Diamond 
Mountain District. The petitioner stated that special care was taken to 
assure that the boundaries encompass only those lands that meet both 
the historic and geographic criteria for inclusion in the viticultural 
area. Also, the boundaries have been drawn to respect neighboring 
regions with separate names, histories, geographic features and 
political boundaries. The petitioner cited the Fourth Edition of The 
Connoisseurs' Handbook of the Wines of California and the Pacific 
Northwest for a description of the proposed area ``* * * a portion of 
the Napa Valley's western hills between St. Helena and Calistoga''. 
This citation was accompanied by a map which shows the rough limits of 
the region: Spring Mountain to the south, the 400 foot elevation that 
generally parallels Highway 29 to the east, Petrified Forest Road to 
the north and the Napa-Sonoma County line to the west.
    The petitioner chose the 400-foot contour line for the northeastern 
boundary to accurately reflect the lowest elevation of vineyards 
historically associated with the Diamond Mountain District. The use of 
the Napa-Sonoma County line as the southwestern boundary acknowledges 
the historic association of the Diamond Mountain District viticultural 
area with Napa County and Napa Valley, and also recognizes the 
differences in history and geography that distinguish Diamond Mountain 
from adjacent slopes of the Mayacama Mountains in Sonoma County.

Evidence Relating to the Geographical Features (Climate, Soil, 
Elevation, Physical Features, etc.) Which Distinguish Viticultural 
Features of the Area From Surrounding Areas

    There is evidence in the record that the geographical features in 
the Diamond Mountain District viticultural area clearly distinguish it 
from surrounding areas. The Diamond Mountain District is situated in 
the Napa Valley on the eastern slope of the Mayacamas Mountains. The 
region consists entirely of residual upland soils derived from volcanic 
parent material. These soils are very different from the alluvial soils 
on the floor of the Napa Valley to the east and northeast and are also 
significantly different from the sedimentary upland soils prevalent in 
the Spring Mountain viticultural area to the south. These soils are 
significantly different from the shallow, dry soils in Sonoma County to 
the west and southwest. According to the petitioner, the viticultural 
area's topography and aspect contribute to a special microclimate. 
Hillside topography and valley temperature inversions combine to give 
the region an unusually moderate temperate regime during a growing 
season, with lower maximum temperatures and higher minimum temperatures 
than nearby locations on the floor of the Napa Valley. The

[[Page 29698]]

petitioner stated that the microclimate of the Diamond Mountain 
District is clearly distinctive when compared to the surrounding areas. 
The region's microclimate is slightly warmer than that of the Spring 
Mountain District to the south, but somewhat similar due to comparable 
upland locations, northeastern (eastern, in Spring Mountain's case) 
aspects, and cooling influence of marine breezes from the Pacific 
Ocean. The microclimate is significantly cooler than the floor of the 
Napa Valley to its northeast and north, due to various tempering 
influences primarily associated with its upland location. So too is it 
cooler than adjacent land to the west in Sonoma County, due to its 
predominantly northeastern aspect which provides oblique sun and shade 
in the afternoon, while the western aspect of the Mayacamas Mountains 
adjacent to the region in Sonoma County is clearly hotter and drier.

Boundaries

    The viticultural area is located in Napa County, California. The 
approved USGS maps for determining the boundary of the Diamond Mountain 
District viticultural area are, ``Mark West Springs, Calif.'', 7.5 
minute series, edition of 1993, and the ``Calistoga, Calif.'', 7.5 
minute series, edition of 1993. The northeastern boundary follows the 
400-foot contour line from Ritchey Creek northwest to the Petrified 
Forest Road and the northern boundary follows the Petrified Forest Road 
west from the 400-foot contour line to the Napa-Sonoma county line. The 
southwestern boundary follows the official boundary line between Napa 
and Sonoma counties southeast from Petrified Forest Road to the east-
west boundary between Sections 18 and 19 in Township 8 North, Range 6 
West, Mount Diablo Range and Meridian. The southern boundary follows 
the boundary between Sections 18 and 19, Sections 17 and 20 and Ritchey 
Creek east from the Napa-Sonoma county line to the 400-foot elevation 
line. It also corresponds with the Northern Boundary of the Spring 
Mountain District viticultural area.

3. Regulatory Analyses and Notices

Does the Paperwork Reduction Act Apply to This Rule?

    The provisions of the Paperwork Reduction Act of 1995, 44 U.S.C. 
Chapter 35, and its implementing regulations, 5 CFR part 1320, do not 
apply to this rule because no requirement to collect information is 
imposed.

How Does the Regulatory Flexibility Act Apply to This Rule?

    These regulations will not have a significant economic impact on a 
substantial number of small entities. The establishment of a 
viticultural area is neither an endorsement or 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 
area.
    No new requirements are proposed. Accordingly, a regulatory 
flexibility analysis is not required.

Is This a Significant Regulatory Action as Defined by Executive Order 
12866?

    It has been determined that this regulation is not a significant 
regulatory action as defined by Executive Order 12866. Therefore, a 
regulatory assessment is not required.

4. Drafting Information

    The principal author of this document is Jennifer Berry, 
Regulations Division, Bureau of Alcohol, Tobacco, and Firearms.

List of Subjects in 27 CFR Part 9

    Administrative practices and procedures, Consumer protection, 
Viticultural areas, and Wine.

Authority and Issuance

    Title 27, Code of Federal Regulations, part 9, American 
Viticultural Areas, is amended as follows:

PART 9--AMERICAN VITICULTURAL AREAS

    Paragraph 1. The authority citation for part 9 continues to read as 
follows:

    Authority: 27 U.S.C. 205.

Subpart C--Approved American Viticultural Areas

    Par. 2. Subpart C is amended by adding Sec. 9.166 to read as 
follows:


Sec. 9.166  Diamond Mountain District

    (a) Name. The name of the viticultural area described in this 
section is ``Diamond Mountain District.''
    (b) Approved Map. The appropriate maps for determining the boundary 
of the Diamond Mountain District viticultural area are two 1:24,000 
Scale U.S.G.S. topography maps.
    They are titled:
    (1) Mark West Springs, CA 1993
    (2) Calistoga, CA 1993.
    (c) Boundaries. The viticultural area is located in Napa County, 
California. The beginning point is where the boundary between Napa and 
Sonoma counties intersects Petrified Forest Road in Section 3 of 
Township 8 North, Range 7 West, Mount Diablo Base and Meridian on the 
Mark West Springs map;
    (1) Then north and east along Petrified Forest Road approximately 
1.9 miles to the point where it intersects the 400-foot contour just 
east of Section 35 of Township 9 North, Range 7 West, Mount Diablo Base 
and Meridian, in the Mallacomes land grant;
    (2) Then generally east southeast along the 400-foot contour 
approximately 6.5 miles to the point where it intersects Ritchey Creek 
in Section 3 of Township 8 North, Range 6 West, Mount Diablo Base and 
Meridian;
    (3) Then west southwest along Ritchey Creek approximately 2.2 miles 
to the point where it intersects the boundary between Sections 17 and 
20 of Township 8 North, Range 6 West, Mount Diablo Base and Meridian;
    (4) Then due west in a straight line along the section boundary 
approximately 0.8 miles to the point where it intersects the boundary 
between Napa and Sonoma Counties between Sections 18 and 19 of Township 
8 North, Range 6 West, Mount Diablo Base and Meridian;
    (5) Then generally northwest along the boundary between Napa and 
Sonoma Counties approximately 4.2 miles to the point where it 
intersects Petrified Forest Road, to the point of beginning.

    Signed: April 13, 2001.
Bradley A. Buckles,
Director.
    Approved: April 19, 2001.
Timothy E. Skud,
Deputy Assistant Secretary (Regulatory, Tariff and Trade Enforcement).
[FR Doc. 01-13821 Filed 5-31-01; 8:45 am]
BILLING CODE 4810-31-P