[Federal Register Volume 72, Number 175 (Tuesday, September 11, 2007)]
[Rules and Regulations]
[Pages 51707-51709]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-17897]



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DEPARTMENT OF THE TREASURY

Alcohol and Tobacco Tax and Trade Bureau

27 CFR Part 24

[T.D. TTB-61; Re: T.D. TTB-17]
RIN 1513-AA96


Materials and Processes Authorized for the Treatment of Wine and 
Juice (2004R-517P)

AGENCY: Alcohol and Tobacco Tax and Trade Bureau (TTB), Treasury.

ACTION: Final rule; Treasury decision.

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SUMMARY: The Alcohol and Tobacco Tax and Trade Bureau is adopting as a 
final rule, with minor technical changes, temporary regulations that 
revised the list of materials authorized for the treatment of wine and 
juice and the list of processes authorized for the treatment of wine, 
juice, and distilling material. The regulatory amendments involved the 
addition of new materials and processes and changes to the limitations 
on the use of certain approved materials.

DATES: Effective Date: September 11, 2007.

FOR FURTHER INFORMATION CONTACT: Jennifer Berry, Alcohol and Tobacco 
Tax and Trade Bureau, Regulations and Rulings Division, P.O. Box 18152, 
Roanoke, Virginia 24014; telephone 540-344-9333.

SUPPLEMENTARY INFORMATION:

Background

    Section 5382 of the Internal Revenue Code of 1986 (26 U.S.C. 5382) 
provides that proper cellar treatment of natural wine constitutes those 
practices and procedures that produce a finished product acceptable in 
good commercial practice. Section 5382 also authorizes the Secretary of 
the Treasury to prescribe, by regulation, limitations on the use of 
methods and materials for clarifying, stabilizing, preserving, 
fermenting, and otherwise correcting wine and juice.
    The regulations administered by the Alcohol and Tobacco Tax and 
Trade Bureau (TTB) include, in 27 CFR part 24, provisions that 
implement these statutory requirements. Section 24.246 of the TTB 
regulations (27 CFR 24.246) lists materials authorized for the 
treatment of wine and juice; 27 CFR 24.247 lists materials authorized 
for the treatment of distilling material; and 27 CFR 24.248 lists 
processes authorized for the treatment of wine, juice, and distilling 
materials.
    Industry members wishing to experiment with, or commercially use, a 
treating material or process not specifically authorized in part 24 may 
file an application with TTB requesting authorization to use the new 
material or process. Standards regarding the experimental use of a new 
material or process are set forth in Sec.  24.249 (27 CFR 24.249). The 
provisions covering applications for commercial use of a new material 
or process are contained in Sec.  24.250 (27 CFR 24.250). Applications 
for commercial use must show that the proposed material or process is a 
cellar treatment consistent with good commercial practice. In general, 
good commercial practice includes addressing the reasonable 
technological or practical need to enhance the keeping, stability, or 
other qualities of the wine, and achieving the winemaker's desired 
effect but not creating an erroneous impression about the character and 
composition of the wine.

Publication of Temporary Rule

    Over the past few years, TTB received and approved a number of 
applications for experimental or commercial use of various wine and 
juice treating materials and processes. TTB concluded that there 
appeared to be enough analytical data or other information on those 
materials and processes to add them to the lists of authorized 
materials and processes contained in Sec. Sec.  24.246 and 24.248. 
Since we had already given administrative approval for the use of these 
materials and processes to some industry members for bottling and sale 
of wine under Sec.  24.249(e), or for commercial use under Sec.  
24.250, we decided to make these additions to the lists through a 
temporary rule. This would allow domestic winemakers to use these 
treatments in the production of standard wine, pending final regulatory 
action, without first having to file an application under Sec.  24.249 
or Sec.  24.250.
    Accordingly, on November 19, 2004, TTB published in the Federal 
Register (69 FR 67639) a temporary rule, T.D. TTB-17, revising the list 
of materials authorized for the treatment of wine and juice in Sec.  
24.246 and the list of processes authorized for the treatment of wine, 
juice, and distilling material in Sec.  24.248. TTB also solicited 
comments from the public on the changes made by T.D. TTB-17. We discuss 
the submitted comments below under ``Discussion of Comments.''
    The temporary rule added materials and processes, or revised 
existing listings, as follows.

Wine and Juice Treating Materials in Sec.  24.246

Acetaldehyde
    Acetaldehyde was added to the list. It is a natural byproduct of 
yeast metabolism and is used in grape juice to stabilize color prior to 
concentration. Residual acetaldehyde is removed during the 
concentration process so that the finished concentrate has no 
detectable level of acetaldehyde.
Copper Sulfate
    Copper sulfate was already listed in Sec.  24.246 for use in 
removing hydrogen sulfide and other mercaptans from wine. T.D. TTB-17 
raised the allowable quantity of copper sulfate from 0.5 to 6 parts per 
million, but kept the allowable residual level at 0.5 part per million.
Calcium Pantothenate
    Calcium pantothenate was added to the list. It is a yeast nutrient 
used to facilitate the fermentation of apple wine. Calcium pantothenate 
is a salt of pantothenic acid, one of the B complex vitamins.
Carbohydrase (Pectinase, Cellulase, Hemicellulase) Enzyme
    Carbohydrase (pectinase, cellulase, hemicellulase) enzyme was added 
to the list under enzymatic activity. It is a mixed carbohydrase 
(pectinase, cellulase, hemicellulase) enzyme preparation derived from a 
nonpathogenic, nontoxigenic strain of Aspergillus aculeatus used to 
facilitate the separation of juice from fruit. The enzyme disintegrates 
fruit cell walls, resulting in a quicker and more complete release of 
juice.
Cellulase Enzyme Preparation
    Cellulase (beta-glucanase) was added to the list under enzymatic 
activity. It is a cellulase enzyme preparation derived from Tricoderma 
longibrachiatum used to facilitate the clarification and filtering of 
wine. The preparation is best suited to treat wines that are difficult 
to filter, such as those produced from Botrytis-infected grapes.
Lysozyme
    Lysozyme was added to the list under enzymatic activity. It is an 
enzyme, derived from egg white, used to limit malolactic bacterial 
growth during wine fermentation. Unchecked, malolactic bacterial growth 
can adversely affect a wine's taste and can halt or slow down 
fermentation. Lysozyme attacks and degrades the cell walls of gram-
positive bacteria, such as Lactobacillus, Pediococcus, and Leuconostoc. 
It can greatly reduce the need for sulfur

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dioxide, which poses a health hazard to individuals allergic to 
sulfites.
Milk Products
    Pasteurized whole or skim milk was already listed in Sec.  24.246 
as authorized for the fining of white grape wine or sherry. T.D. TTB-17 
amended this listing to include half-and-half and to allow the fining 
of all grape wine, while keeping the approved usage rate at 0.2 percent 
of the volume of wine. T.D. TTB-17 also added as an authorized use the 
use of these milk products to remove off flavors in wine, subject to a 
usage rate not to exceed 1 percent of the volume of wine.
Silica Gel (Colloidal Silicon Dioxide)
    Silica gel (colloidal silicon dioxide) was already listed in Sec.  
24.246 for use in clarifying wine. T.D. TTB-17 added the clarification 
of juice to its authorized uses, with the limitations on use remaining 
the same.

Wine Treating Processes in Sec.  24.248

Electrodialysis
    Electrodialysis was added to the list for use in removing excess 
tartrates from wine. The process consists of moving bulk wine past two 
membranes, one on either side of the wine. One membrane is selectively 
permeable to tartrate salts and the other, to calcium and potassium 
salts. As the wine passes between the two membranes, a water-based 
conductant passes on the other side of both membranes. As both liquids 
flow through the apparatus, a weak electrical current is introduced to 
cause the tartrate salts to migrate towards the positively charged 
membrane and the potassium and calcium salts to migrate toward the 
negatively charged membrane. As the tartrate, calcium, and potassium 
salts pass through the membranes, they enter the conductant stream and, 
when carried out of the apparatus, are discarded.
Metal and Sulfide Reducing Matrix Sheets
    Metal and sulfide reducing matrix sheet processes were added to the 
list. The first of these two types of matrix filter sheets removes 
metals such as copper and iron from wine, while the second removes 
sulfides. Both types of sheets contain the active ingredient 
polyvinylimidazol (PVI), a terpolymer related to polyvinyl-
polypyrrolidone (PVPP), already listed as an approved material in Sec.  
24.246. The PVI is immobilized in a cellulose matrix sheet and 
constitutes, at most, 40 percent of the weight of the sheet. Wine is 
passed through these sheets at a controlled flow rate using 
conventional filtering methods.
Nanofiltration
    Nanofiltration was added to the list. It is used in combination 
with ion exchange to remove volatile acidity from bulk wine. The wine 
is drawn into a storage tank where it is pressurized and piped through 
a mechanical submicron filtration system using nanotechnology. The wine 
is separated into two streams: The first contains molecules of larger 
molecular weight, such as flavors, while the second contains molecules 
of smaller molecular weight, such as alcohol, water, and acetic acid. 
The second stream is passed through an ion exchange column, which 
selectively removes the acetic acid and allows the alcohol and water 
molecules to pass through. Upon exiting the ion exchange column, the 
second stream is recombined with the first stream.
Osmotic Transport
    Osmotic transport was added to the list. It is used to reduce 
alcohol content in wine. The process involves two liquids, typically 
water solutions, which have different water vapor pressures. The 
solution to be treated--the ``feed'' solution--contains volatile 
components that are soluble or miscible in the receiving solution, or 
``stripping'' solution. The membrane must be completely hydrophobic to 
prevent the stripping solution from passing through the membrane into 
the feed solution. Wine is pumped along one side of a completely 
hydrophobic, microporous membrane with water on the other side. The 
wine and the stripping solution run tangential to, and are separated 
by, the thin membrane. The difference in vapor pressure of the alcohol 
in the wine and that of the water-based stripping solution separates 
the alcohol and the stripping solution. The higher vapor pressure of 
the alcohol in the wine causes some of the alcohol to evaporate, to 
pass through the microporous membrane, and then to condense in the 
water-based stripping solution. The stripping solution is usually 
circulated across the membrane until the alcohol content of the feed 
wine and the stripping solution are essentially equal. The process is 
performed at ambient temperature without elevated pressure, other than 
just enough pressure to pump the wine. Since the separation of alcohol 
from a fermented substance is considered to be a distilling process, 
the new listing specifies that osmotic transport operations must be 
conducted at a distilled spirits plant premises rather than at a 
winery.

Discussion of Comments

    During the public comment period, which closed on January 18, 2005, 
TTB received five comments on the temporary rule.
    The Enzyme Technical Association commented favorably on the 
addition of three new enzymes to the list of approved materials and 
provided additional technical information to support the use of these 
enzymes in wine. The association also noted two misspellings throughout 
T.D. TTB-17. The genus name of ``Aspergillus aculeatus'' was 
incorrectly spelled as ``Aspergilius''; the species name of 
``Trichoderma longibrachiatum'' was incorrectly spelled as 
``longibrachiatu.'' We are correcting the regulatory text in this final 
rule.
    BASF Corporation, which manufactures a product that removes heavy 
metals and sulfides from alcoholic beverages, submitted a comment 
requesting that no limit be placed on the amount of copper sulfate that 
may be added to wine, even though it supported retaining the 
specification at a residual level of copper sulfate in wine at 0.5 ppm. 
The commenter further requested that we not require that 
polyvinylimidazol (PVI), the active material in the sulfide and metal 
reducing matrix sheets, be used in sheets.
    TTB does not have analytical data or other information to assess 
these requests at this time. We also believe that adoption of such 
requests should be the subject of public notice and comment procedures. 
Accordingly, we believe that it would not be appropriate to include 
them in this final rule document.
    TTB received two comments regarding nanofiltration. The first 
commenter supported adding nanofiltration to the list of approved 
processes, stating that it has been safely used in several other 
countries for years. The second commenter opposed adding nanofiltration 
to the list, stating that it is a subcategory of reverse osmosis, an 
already approved process. The second commenter also stated that 
recognizing nanofiltration as a new technology will create confusion in 
the industry and ``open a can of worms legally'' because of the 
involved patents.
    In response to the opposing comment, we note that while 
nanofiltration and reverse osmosis may have some operational 
similarities, they have different uses and limitations for the 
treatment of wine. TTB believes it is appropriate to list these two 
items as separate treatments in the regulations. TTB's regulatory 
intent is to provide

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clarity as to what treatments and materials are authorized under 26 
U.S.C. 5382, and our decision to list nanofiltration and reverse 
osmosis separately as wine treatments should not be perceived as a 
determination or implication regarding the coverage or validity of any 
patents.
    The E. & J. Gallo Winery submitted a comment opposing the 
regulatory requirement that osmotic transport be conducted at a 
distilled spirits plant rather than at a bonded winery. The winery 
stated that this requirement would preclude use of the technology by 
small wineries and in jurisdictions that do not allow distilling 
activities. Also, it noted that the alcoholic stripping solution is 
very low in alcohol, at times lower than 0.5 percent. Further, the 
commenter pointed out that in T.D. ATF-371, ATF allowed the use of 
reverse osmosis and ion exchange on bonded winery premises. That 
Treasury decision, states, in part:

    Normally, reverse osmosis must be done on distilled spirits 
plant premises because it is considered a distilling process 
resulting in a distilled spirits by-product. However, in this case, 
the various components of wine will only be created temporarily in a 
closed system and will be immediately recombined in-line to 
reconstitute the original wine minus VA. Consequently, ATF has 
concluded that this type of reverse osmosis may be conducted on 
bonded winery premises since no separate distilled spirits product 
is created as a final product or by-product.

The winery contends that because the stripping solution could be either 
immediately disposed of or mixed with a wine byproduct, such as lees, 
it ``would not be accumulated outside the closed system; it would be 
immediately destroyed or immediately rendered unpotable.''
    TTB does not agree that the osmotic transport process is 
sufficiently similar to the reverse osmosis and ion exchange process 
cited in T.D. ATF-371 so as to support the commenter's suggestion. The 
stripping solution is not recombined inline with the wine as in reverse 
osmosis and ion exchange, but instead is accumulated outside the 
system. TTB agrees that it may be appropriate in future rulemaking to 
reexamine the core issue raised in the comment, which is whether TTB 
should continue to require that processes that separate spirits from 
wine be conducted only at distilled spirits plants. TTB would give 
careful consideration to a petition requesting rulemaking on this 
subject. Such a petition should be addressed to the Administrator, 
Alcohol and Tobacco Tax and Trade Bureau, 1310 G Street, NW., 
Washington, DC 20220.

TTB Finding

    After careful review of the comments received, TTB has decided to 
adopt as a final rule the temporary regulations set forth in T.D. TTB-
17, with the spelling corrections discussed above. In addition, we are 
making a small technical correction to the entry for ``Milk products'' 
in the table in Sec.  24.246. For the sake of consistency, we are 
adding the word ``product'' after ``pasteurized milk'' in the 
``Reference or limitation'' column.

Inapplicability of the Delayed Effective Date Requirement

    Because these regulations relieve a restriction by authorizing 
additional materials and processes for the treatment of wine and 
because they are already in effect, it has been determined, pursuant to 
5 U.S.C. 553(d)(1) and (3), that good cause exists to issue these 
regulations without a delayed effective date.

Regulatory Flexibility Act

    We certify that this regulation will not have a significant 
economic impact on a substantial number of small entities. This 
regulation provides greater flexibility to wine producers without 
imposing any new reporting, recordkeeping, or other administrative 
requirements. Therefore, no regulatory flexibility analysis is 
required.

Executive Order 12866

    This rule is not a significant regulatory action as defined by 
Executive Order 12866 (58 FR 51735). Therefore, it requires no 
regulatory assessment.

Drafting Information

    The principal author of this document was Jennifer K. Berry, 
Regulations and Rulings Division, Alcohol and Tobacco Tax and Trade 
Bureau. However, other personnel participated in its development.

List of Subjects in 27 CFR Part 24

    Administrative practice and procedure, Claims, Electronic fund 
transfers, Excise taxes, Exports, Food additives, Fruit juices, 
Labeling, Liquors, Packaging and containers, Reporting and 
recordkeeping requirements, Research, Scientific equipment, Spices and 
flavoring, Surety bonds, Vinegar, Warehouses, Wine.

The Regulatory Amendment

0
For the reasons discussed in the preamble, the temporary rule published 
in the Federal Register at 69 FR 67639 on November 19, 2004, as T.D. 
TTB-17, is adopted as a final rule with the changes discussed above and 
set forth below:

PART 24--WINE

0
1. The authority citation for part 24 continues to read as follows:

    Authority: 5 U.S.C. 552(a); 26 U.S.C. 5001, 5008, 5041, 5042, 
5044, 5061, 5062, 5081, 5111-5113, 5121, 5122, 5142, 5143, 5173, 
5206, 5214, 5215, 5351, 5353, 5354, 5356, 5357, 5361, 5362, 5364-
5373, 5381-5388, 5391, 5392, 5511, 5551, 5552, 5661, 5662, 5684, 
6065, 6091, 6109, 6301, 6302, 6311, 6651, 6676, 7011, 7302, 7342, 
7502, 7503, 7606, 7805, 7851; 31 U.S.C. 9301, 9303, 9304, 9306.


Sec.  24.246  [Amended]

0
2. In the table in Sec.  24.246:
0
a. Under the heading for ``Enzymatic activity,'' in the entry for 
``Carbohydrase (pectinase, cellulase, hemicellulase),'' in the column 
headed ``Reference or limitation,'' the word ``Aspergilius'' is removed 
and the word ``Aspergillus;'' is added in its place;
0
b. Under the heading for ``Enzymatic activity,'' in the entry for 
``Cellulase (beta-glucanase),'' in the column headed ``Reference or 
limitation,'' the word ``longibrachiatu'' is removed and the word 
``longibrachiatum'' is added in its place; and
0
c. In each entry under ``Milk products,'' in the column headed 
``Reference or limitation,'' the word ``product'' is added after the 
words ``pasteurized milk'' wherever they appear.

    Signed: March 14, 2007.
John J. Manfreda,
Administrator.
    Approved: March 27, 2007.
Timothy E. Skud,
Deputy Assistant Secretary (Tax, Trade, and Tariff Policy).

    Editorial Note: This document was received at the Office of the 
Federal Register on September 6, 2007.

 [FR Doc. E7-17897 Filed 9-10-07; 8:45 am]
BILLING CODE 4810-31-P