[Federal Register Volume 77, Number 59 (Tuesday, March 27, 2012)]
[Proposed Rules]
[Pages 18146-18149]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-7256]
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DEPARTMENT OF THE TREASURY
Alcohol and Tobacco Tax and Trade Bureau
27 CFR Part 5
[Docket No. TTB-2012-0001; Notice No. 126]
RIN 1513-AB91
Standards of Identity for Pisco and Cognac
AGENCY: Alcohol and Tobacco Tax and Trade Bureau, Treasury.
ACTION: Notice of proposed rulemaking.
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SUMMARY: In this document, the Alcohol and Tobacco Tax and Trade Bureau
proposes to amend its regulations setting forth the standards of
identity for distilled spirits to include Pisco as a
[[Page 18147]]
type of brandy that must be manufactured in accordance with the laws
and regulations of either Peru or Chile, as appropriate, governing the
manufacture of those products. This change will remove ``Pisco brandy''
from the list of examples of geographical designations in the distilled
spirits standards of identity. This document also includes a technical
correction to remove ``Cognac'' from the same list of examples. These
changes will provide greater clarity in distilled spirits labeling.
DATES: Comments must be received on or before May 29, 2012.
ADDRESSES: You may send comments on this document to one of the
following addresses:
http://www.regulations.gov (via the online comment form
for this document as posted within Docket No. TTB-2012-0001 at
``Regulations.gov,'' the Federal e-rulemaking portal);
Mail: Director, Regulations and Rulings Division, Alcohol
and Tobacco Tax and Trade Bureau, P.O. Box 14412, Washington, DC 20044-
4412; or
Hand delivery/courier in lieu of mail: Alcohol and Tobacco
Tax and Trade Bureau, 1310 G Street NW., Suite 200-E, Washington, DC
20005.
See the Public Participation section of this document for specific
instructions and requirements for submitting comments, and for
information on how to request a public hearing.
You may view copies of this document, selected supporting
materials, and any comments we receive about this proposal at http://www.regulations.gov within Docket No. TTB-2012-0001. A direct link to
this docket is posted on the TTB Web site at http://www.ttb.gov/spirits/spirits-rulemaking.shtml under Notice No. 126. You also may
view copies of this document, all related supporting materials, and any
comments we receive about this proposal by appointment at the TTB
Information Resource Center, 1310 G Street NW., Washington, DC 20005.
Please call 202-453-2270 to make an appointment.
FOR FURTHER INFORMATION CONTACT: Karen E. Welch, Regulations and
Rulings Division, Alcohol and Tobacco Tax and Trade Bureau, 1310 G
Street NW., Box 12, Washington, DC 20005; telephone 202-453-1039, ext.
046; email [email protected].
SUPPLEMENTARY INFORMATION:
Background
TTB Authority
Section 105(e) of the Federal Alcohol Administration Act (FAA Act),
codified in the United States Code at 27 U.S.C. 205(e), authorizes the
Secretary of the Treasury (Secretary) to prescribe regulations relating
to the packaging, marking, branding, labeling, and size and fill of
containers of alcohol beverages that will prohibit consumer deception
and provide the consumer with adequate information as to the identity
and quality of the product. Section 105(e) of the FAA Act also
generally requires bottlers and importers of alcohol beverages to
obtain certificates of label approval prior to bottling or importing
alcohol beverages for sale in interstate commerce. Regulations
implementing those provisions of section 105(e) as they relate to
distilled spirits are set forth in part 5 of title 27 of the Code of
Federal Regulations (27 CFR part 5). The Alcohol and Tobacco Tax and
Trade Bureau (TTB) administers the FAA Act pursuant to section 111(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.
Certificates of Label Approval
TTB's regulations prohibit the release of bottled distilled spirits
from customs custody for consumption unless an approved Certificate of
Label Approval (COLA) covering the product has been deposited with the
appropriate Customs officer at the port of entry. See 27 CFR 5.51. The
TTB regulations also generally prohibit the bottling or removal from a
plant of distilled spirits unless the proprietor possesses a COLA
covering the labels on the bottle. See 27 CFR 5.55.
Classes and Types of Spirits
The TTB labeling regulations require that the class and type of
distilled spirits appear on the product's brand label. See 27 CFR
5.32(a)(2) and 5.35. Those regulations provide that the class and type
must be stated in conformity with Sec. 5.22 of the TTB regulations (27
CFR 5.22) if defined therein. Otherwise, the product must be designated
in accordance with trade and consumer understanding thereof, or, if no
such understanding exists, by a distinctive or fanciful name, and in
either case (with limited exceptions), followed by a truthful and
adequate statement of composition.
Section 5.22 establishes standards of identity for distilled
spirits products and categorizes these products according to various
classes and types. As used in Sec. 5.22, the term ``class'' refers to
a general category of spirits, such as ``whisky'' or ``brandy.''
Currently, there are 12 different classes of distilled spirits
recognized in Sec. 5.22, including whisky, rum, and brandy. The term
``type'' refers to a subcategory within a class of spirits. For
example, ``Cognac'' is a type of brandy, and ``Canadian whisky'' is a
type of whisky.
Brandy and Pisco
Brandy is Class 4 in the standards of identity, where it is defined
in Sec. 5.22(d) as ``an alcoholic distillate from the fermented juice,
mash, or wine of fruit, or from the residue thereof, produced at less
than 190[deg] proof in such manner that the distillate possesses the
taste, aroma, and characteristics generally attributed to the product,
and bottled at not less than 80[deg] proof.'' ``Pisco'' is a term
recognized by both the governments of Peru and Chile as a designation
for a distilled spirits product made from grapes. However, ``Pisco
brandy'' is not currently listed as a type of brandy in Class 4.
Rather, it is provided in Class 11, at Sec. 5.22(k)(3), as an example
of a geographical name that is not a name for a distinctive type of
distilled spirits, and that has not become generic.
International Agreements
Pursuant to the United States-Peru Trade Promotion Agreement, the
United States recognized Pisco Per[uacute] as a distinctive product of
Peru (Article 2.12(2) of the Agreement). Accordingly, the United States
agreed not to permit the sale of any product as Pisco Per[uacute]
unless it has been manufactured in Peru in accordance with the laws and
regulations of Peru governing Pisco.
In addition, pursuant to the United States-Chile Free Trade
Agreement, the United States recognized Pisco Chileno (Chilean Pisco)
as a distinctive product of Chile (Article 3.15(2) of the Agreement).
Accordingly, the United States agreed not to permit the sale of any
product as Pisco Chileno (Chilean Pisco) unless it has been
manufactured in Chile in accordance with the laws and regulations of
Chile governing the manufacture of Pisco.
In like manner, Peru and Chile agreed, respectively, to recognize
Bourbon Whiskey and Tennessee Whiskey (which is defined in both
Agreements as a straight Bourbon Whiskey authorized to be produced only
in the State of Tennessee), as distinctive products of the United
States, and not to permit the sale of any product as Bourbon Whiskey or
Tennessee Whiskey unless it has been manufactured in the United States
in accordance with the laws and
[[Page 18148]]
regulations of the United States governing the manufacture of Bourbon
Whiskey and Tennessee Whiskey. (TTB notes that there are alternative
spellings for the same term--``whisky'' in the TTB regulations in 27
CFR part 5 and ``whiskey'' in the Agreements with Peru and Chile.)
Pisco Production
``The Oxford Companion to Wine'' (Jancis Robinson, ed., Oxford
University Press, 2d ed., 2001, p. 536) reports that Spanish colonists
began producing aguardiente (grape spirits) in both Peru and Chile
since the sixteenth century, in addition to describing the spirits
produced in the area near the town of Pisco in Peru. Further, ``The
Oxford Companion to Wine'' says ``Pisco'' is an aromatic brandy made in
Peru, Chile, and Bolivia, mainly from Moscatel (muscat) grapes.''
According to ``Alexis Lichine's Encyclopedia of Wines and Spirits''
(Alexis Lichine, ed., 5th ed., Alfred A. Knopf, Inc., 1987), ``Pisco
brandy'' is brandy distilled from Muscat wine in Peru, Chile,
Argentina, and Bolivia. Peru and Chile have promulgated standards for
the production of Pisco, which, under both countries' respective
regulations, is distilled from grapes that were grown in delimited
geographical areas.
TTB Regulatory Proposal
After reviewing the standards of identity in 27 CFR part 5, TTB's
COLA database, and the laws and regulations of Peru and Chile, TTB has
determined that amending Sec. 5.22 is appropriate to clarify the
status of Pisco under the standards of identity.
TTB believes that Pisco generally meets the U.S. standard for
brandy and should be classified as a type of brandy. TTB also believes
that evidence suggests that the generally recognized geographical
limits of the Pisco-producing areas do not extend beyond the boundaries
of Chile and Peru. The wine and spirits authorities cited above
indicate that Pisco production is not associated with any areas outside
of South America. COLAs naming ``Pisco'' as the brand name or fanciful
name of a distilled spirits product are almost exclusively for products
from Chile and Peru. TTB could not locate any COLAs naming ``Pisco'' as
the brand name or fanciful name for any products from Argentina, or
from any other country in South America with the exception of Peru,
Chile, and Bolivia. COLAs for products from Bolivia that name ``Pisco''
as the brand name or fanciful name also use the term ``Singani.'' ``The
Oxford Companion to Wine'' defines ``Singani'' as an ``aromatic grape-
based spirit rather like pisco in that it is high in terpenes and made
under a strictly controlled regime, principally from Muscat of
Alexandria grapes'' and a specialty of Bolivia (Robinson, p. 638).
Bolivia maintains standards for Singani production in Bolivia, but does
not have standards for Pisco production.
Therefore, TTB proposes to amend the standard of identity in Sec.
5.22(d) by adding Pisco as a type of brandy that is manufactured in
Peru or Chile in compliance with the laws of the country of production
regulating the manufacture of Pisco. The proposed amendment also
recognizes the phrases ``Pisco Per[uacute]'' (with or without the
diacritic mark, i.e., ``Pisco Per[uacute]'' or ``Pisco Peru''), ``Pisco
Chileno,'' and ``Chilean Pisco,'' as equivalent class and type names of
the product, to reflect the provisions of the trade agreements.
Further, if Pisco is recognized as a type of brandy, persons who
distribute it in the United States will be entitled to label the
product according to its type designation ``Pisco'' without the term
``brandy'' on the label, in the same way that a product labeled with
the type designation ``Cognac'' is not required to also bear the class
designation ``brandy.''
TTB notes that the Peruvian standard allows products designated as
Pisco to have an alcohol content ranging from 38 to 48 percent alcohol
by volume, and the Chilean standard allows products designated as Pisco
to have an alcohol content as low as 30 percent alcohol by volume.
However, since the standard proposed in this document would identify
Pisco as a type of brandy, and the U.S. standard requires that brandy
must be bottled at not less than 40 percent alcohol by volume, any
Pisco imported into the United States would have to conform to this
minimum bottling proof requirement. A product that is bottled at below
40 percent alcohol by volume would fall outside this class and type
designation. Depending on the way that such a product is manufactured,
it could be labeled as a ``diluted Pisco'' or as a distilled spirits
specialty product bearing a statement of composition.
Finally, TTB believes that it is appropriate to remove both ``Pisco
brandy'' and ``Cognac'' from Sec. 5.22(k)(3), where they are listed as
examples of geographical names that are not names for distinctive types
of distilled spirits, and that have not become generic. Pisco will
appear in new Sec. 5.22(d)(9), where it will be a type of brandy
defined as grape brandy manufactured in Peru or Chile in accordance
with the laws and regulations governing the manufacture of Pisco of the
country of manufacture.
Cognac currently appears in Sec. 5.22(d)(2), where it is a type of
brandy defined as ``grape brandy distilled in the Cognac region of
France, which is entitled to be so designated by the laws and
regulations of the French Government.'' The inclusion of ``Cognac'' in
the list of examples of geographical names that are not names for
distinctive types of distilled spirits, and that have not become
generic, in Sec. 5.22(k)(3) is duplicative and confusing. Accordingly,
TTB proposes to remove the reference to Cognac in Sec. 5.22(k)(3) as a
technical correction to the regulations.
Effect on Currently Approved Labels
If finalized, this change to the regulations would revoke by
operation of regulation any COLAs that specify ``Pisco'' as the class
and type or brand name or fanciful name of distilled spirits products
that are not products of Peru or Chile. TTB has searched its COLA
database, and believes that this rulemaking will affect only a small
number of labels.
Public Participation
Comments Invited
We invite comments from interested members of the public on this
proposed rulemaking.
Submitting Comments
Please submit your comments by the closing date shown above in this
notice. You may submit comments in one of the following three ways:
Federal e-Rulemaking Portal: You may send comments via the
online comment form associated with this notice in Docket No. TTB-2012-
0001 on ``Regulations.gov,'' the Federal e-rulemaking portal, at http://www.regulations.gov. A direct link to that docket is available under
Notice No. 126 on the TTB Web site at http://www.ttb.gov/spirits/spirits-rulemaking.shtml. Supplemental files may be attached to
comments submitted via Regulations.gov. For information on how to use
Regulations.gov, click on the site's Help tabs.
U.S. Mail: You may send comments via postal mail to the
Director, Regulations and Rulings Division, Alcohol and Tobacco Tax and
Trade Bureau, P.O. Box 14412, Washington, DC 20044-4412.
Hand Delivery/Courier: You may hand-carry your comments or
have them hand-carried to the Alcohol and Tobacco Tax and Trade Bureau,
1310 G Street NW., Suite 200-E, Washington, DC 20005.
Your comments must reference Notice No. 126 and include your name
and
[[Page 18149]]
mailing address. Your comments also must be made in English, be
legible, and be written in language acceptable for public disclosure.
TTB does not accept anonymous comments, does not acknowledge receipt of
comments, and considers all comments as originals.
If you are commenting on behalf of an association, business, or
other entity, your comment must include the entity's name as well as
your name and position title. If you comment via Regulations.gov,
please enter the entity's name in the ``Organization'' blank of the
comment form. If you comment via mail, please submit your entity's
comment on letterhead.
You may also write to the Administrator before the comment closing
date to ask for a public hearing. The Administrator reserves the right
to determine whether to hold a public hearing.
Confidentiality
All submitted comments and attachments are part of the public
record and subject to disclosure. Do not enclose any material in your
comments that you consider confidential or inappropriate for public
disclosure.
Public Disclosure
On the Federal e-rulemaking portal, Regulations.gov, TTB will post,
and the public may view, copies of this notice and any electronic or
mailed comments we receive about it. A direct link to the
Regulations.gov docket containing this notice and the posted comments
received on it is available on the TTB Web site at http://www.ttb.gov/spirits/spirits-rulemaking.shtml under Notice No. 126. You may also
reach the docket containing this notice and its related comments
through the Regulations.gov search page at http://www.regulations.gov.
All posted comments will display the commenter's name, organization
(if any), city, and State, and, in the case of mailed comments, all
address information, including email addresses. TTB may omit voluminous
attachments or material that the Bureau considers unsuitable for
posting.
You and other members of the public may view copies of this notice
and any electronic or mailed comments TTB receives on it by appointment
at the TTB Information Resource Center, 1310 G Street NW., Washington,
DC 20005. You may also obtain copies at 20 cents per 8.5 x 11-inch
page. Contact the TTB information specialist at the above address or by
telephone at 202-453-2270 to schedule an appointment or to request
copies of comments or other materials.
Regulatory Analysis and Notices
Executive Order 12866
It has been determined that this proposed rule is not a significant
regulatory action as defined in Executive Order 12866. Therefore, a
regulatory assessment is not required.
Regulatory Flexibility Act
Pursuant to the requirements of the Regulatory Flexibility Act (5
U.S.C. chapter 6), TTB certifies that this notice of proposed
rulemaking will not have a significant economic impact on a substantial
number of small entities. The propose rule would clarify the statue of
Pisco under the standards of identity for distilled spirits and, if
promulgated, will not impose, or otherwise cause, a significant
increase in reporting, recordkeeping, or other compliance burdens on a
substantial number of small entities. Accordingly, a regulatory
flexibility analysis is not required.
Drafting Information
Karen Welch of the Regulations and Rulings Division, Alcohol and
Tobacco Tax and Trade Bureau, drafted this notice.
List of Subjects in 27 CFR Part 5
Advertising, Customs duties and inspection, Imports, Labeling,
Liquors, Packaging and containers, Reporting and recordkeeping
requirements, Trade practices.
Amendment to the Regulations
For the reasons discussed in the preamble, TTB proposes to amend 27
CFR part 5 as follows:
PART 5--LABELING AND ADVERTISING OF DISTILLED SPIRITS
1. The authority citation for part 5 continues to read as follows:
Authority: 26 U.S.C. 5301, 7805, 27 U.S.C. 205.
2. Section 5.22 is amended by:
a. In paragraph (d) introductory text, removing the words
``paragraph (d)(1) through (8)'' and adding, in their place, the words
``paragraphs (d)(1) through (9)'';
b. In paragraph (k)(3), by removing the words ``Cognac,'' and
``Pisco brandy,''; and
c. Adding new paragraph (d)(9) to read as follows:
Sec. 5.22 The standards of identity.
* * * * *
(d) * * *
(9) ``Pisco'' is grape brandy manufactured in Peru or Chile in
accordance with the laws and regulations governing the manufacture of
Pisco of the country of manufacture.
(i) ``Pisco Per[uacute]'' (or ``Pisco Peru'') is Pisco manufactured
in Peru in accordance with the laws and regulations of Peru governing
the manufacture of Pisco.
(ii) ``Pisco Chileno'' or ``Chilean Pisco'' is Pisco manufactured
in Chile in accordance with the laws and regulations of Chile governing
the manufacture of Pisco.
* * * * *
Signed: February 3, 2012.
John J. Manfreda,
Administrator.
Approved: February 27, 2012.
Timothy E. Skud,
Deputy Assistant Secretary, Tax, Trade, and Tariff Policy.
[FR Doc. 2012-7256 Filed 3-26-12; 8:45 am]
BILLING CODE 4810-31-P