AGENCY:

Alcohol and Tobacco Tax and Trade Bureau, Treasury.

ACTION:

Notice of proposed rulemaking.

SUMMARY:

The Alcohol and Tobacco Tax and Trade Bureau (TTB) proposes to establish the approximately 58,000-acre “Tehachapi Mountains” viticultural area in Kern County, California. The proposed viticultural area is not located within, nor does it contain, any established viticultural area. TTB designates viticultural areas to allow vintners to better describe the origin of their wines and to allow consumers to better identify wines they may purchase. TTB invites comments on this proposed addition to its regulations.

DATES:

Comments must be received by August 25, 2020.

ADDRESSES:

You may electronically submit comments to TTB on this proposal, and view copies of this document, its supporting materials, and any comments TTB receives on it within Docket No. TTB-2020-0006 as posted on Regulations.gov (https://www.regulations.gov), the Federal e-rulemaking portal. Please see the “Public Participation” section of this document below for full details on how to comment on this proposal via Regulations.gov, U.S. mail, or hand delivery, and for full details on how to view or obtain copies of this document, its supporting materials, and any comments related to this proposal.

FOR FURTHER INFORMATION CONTACT:

Karen A. Thornton, Regulations and Rulings Division, Alcohol and Tobacco Tax and Trade Bureau, 1310 G Street NW, Box 12, Washington, DC 20005; phone 202-453-1039, ext. 175.

SUPPLEMENTARY INFORMATION:

Background on Viticultural Areas

TTB Authority

Section 105(e) of the Federal Alcohol Administration Act (FAA Act), 27 U.S.C. 205(e), authorizes the Secretary of the Treasury to prescribe regulations for the labeling of wine, distilled spirits, and malt beverages. The FAA Act provides that these regulations should, among other things, prohibit consumer deception and the use of misleading statements on labels and ensure that labels provide the consumer with adequate information as to the identity and quality of the product. The Alcohol and Tobacco Tax and Trade Bureau (TTB) administers the 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 the functions and duties in the administration and enforcement of these provisions to the TTB Administrator through Treasury Order 120-01, dated December 10, 2013 (superseding Treasury Order 120-01, dated January 24, 2003).

Part 4 of the TTB regulations (27 CFR part 4) authorizes TTB to establish definitive viticultural areas and regulate 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 (AVAs) and lists the approved AVAs.

Definition

Section 4.25(e)(1)(i) of the TTB regulations (27 CFR 4.25(e)(1)(i)) defines a viticultural area for American wine as a delimited grape-growing region 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 the wine's geographic origin. The establishment of AVAs allows vintners to describe more accurately the origin of their wines to consumers and helps consumers to identify wines they may purchase. Establishment of an AVA is neither an approval nor an endorsement by TTB of the wine produced in that area.

Requirements

Section 4.25(e)(2) of the TTB regulations (27 CFR 4.25(e)(2)) outlines the procedure for proposing an AVA and provides that any interested party may petition TTB to establish a grape-growing region as an AVA. Section 9.12 of the TTB regulations (27 CFR 9.12) prescribes the standards for petitions for the establishment or modification of AVAs. Petitions to establish an AVA must include the following:

• Evidence that the area within the proposed AVA boundary is nationally or locally known by the AVA name specified in the petition;
• An explanation of the basis for defining the boundary of the proposed AVA;
• A narrative description of the features of the proposed AVA affecting viticulture, such as climate, geology, soils, physical features, and elevation, that make the proposed AVA distinctive and distinguish it from adjacent areas outside the proposed AVA;
• The appropriate United States Geological Survey (USGS) map(s) showing the location of the proposed AVA, with the boundary of the proposed AVA clearly drawn thereon; and
• A detailed narrative description of the proposed AVA boundary based on USGS map markings.

Tehachapi Mountains Petition

TTB received a petition from Julie Bell of Per la Vita, LLC, on behalf of local vineyard owners and winemakers, proposing the establishment of the “Tehachapi Mountains” AVA. The proposed Tehachapi Mountains AVA is located in Kern County, California, and is not within any established AVA. The proposed Tehachapi Mountains AVA contains approximately 58,000 acres and has 6 commercially-producing vineyards covering a total of 25 acres, as well as 1 winery.

According to the petition, the distinguishing features of the proposed Tehachapi Mountains AVA include its topography and climate. Unless otherwise noted, all information and data pertaining to the proposed AVA contained in this document are from the petition for the proposed Tehachapi Mountains AVA and its supporting exhibits.

Name Evidence

The proposed Tehachapi Mountains AVA takes its name from a pass within the Tehachapi Mountains range, which partly lie within the proposed AVA. The Tehachapi Mountains are a smaller range of mountains within the Sierra Nevada Mountains. The petitioner states the “Tehachapi” name is unique to the area within the boundaries of the proposed AVA. Further, while the origin of “Tehachapi” is unknown, the petitioner notes nineteenth century texts show “Tehachapi” may derive from a Native American name for the pass within the Tehachapi Mountains and a creek draining from this pass. The petitioner originally proposed the name “Tehachapi,” which is the name of a town within the proposed AVA, but later requested changing the name to “Tehachapi Mountains” to avoid a potential conflict with label holders using the name “Tehachapi” or the grape varietal “Tehachapi Clone” on their labels. Although there is a peak in the range called “Tehachapi Mountain,” the petitioner chose to the name the proposed AVA after the entire range because while parts of the range are within AVA, the peak called “Tehachapi Mountain” is not within the proposed AVA.

The petition provided examples of the use of the words “Tehachapi,” “Tehachapi Mountain,” and “Tehachapi Mountains” to describe the region of the proposed AVA. The Tehachapi Mountains are clearly labeled on the USGS 30 x 60 minute series map titled “Tehachapi, CA,” as shown in Supplemental Exhibit B to the petition. The Tehachapi Mountains Birding Club is described as “the only club dedicated to local wildlife within the Tehachapi Mountains.” ^[1] The city of Tehachapi, which is within the proposed AVA, celebrates the Tehachapi Mountain Festival each year. The geologic feature called the Tehachapi Pass is located within the proposed AVA and provides passage through the mountain range. The California Department of Transportation's project to improve rail lines within the region of the proposed AVA is called the Tehachapi Rail Improvement Project. Tehachapi Boulevard is a major road running through the proposed AVA. Finally, the proposed AVA is served by the Tehachapi Valley Healthcare District, the Tehachapi Unified School District, and the Tehachapi Municipal Airport.

Boundary Evidence

The proposed Tehachapi Mountains AVA roughly extends from the summit of Tehachapi Pass to the Tehachapi Valley, which includes the city of Tehachapi. The proposed boundary was drawn to separate the proposed AVA from the higher elevations farther within the Sierra Nevada Mountains range and from the lower elevations of the Mojave Desert and the San Joaquin Valley. The northern and southern boundaries follow a series of elevation contours and straight lines drawn between elevation contours that range from 4,200 to 5,400 feet in order to separate the proposed AVA from the higher elevations of the Piute Mountains (to the north) and the Tehachapi Mountains (to the south) that are inhospitable to grape growing. The eastern boundary follows a series of roads to separate the proposed AVA from the lower elevations and warmer climate of the Mojave Desert. The western boundary generally follows the 3,600-foot elevation contour to separate the proposed AVA from the lower, warmer region of the San Joaquin Valley.

Distinguishing Features

The distinguishing features of the proposed Tehachapi Mountains AVA are its topography and climate.

Topography

The proposed Tehachapi Mountains AVA is situated at the summit of the southernmost pass in the Sierra Nevada mountain range. The petition describes the proposed AVA as a broad, saddle-shaped region of mountain foot slopes, high valleys, and rolling hills. The proposed AVA has an east-west orientation, and the terrain at the east and west ends of the “saddle” rise to rugged hills before sharply falling away to lower elevations. However, these hills are not high enough to prevent warm air from the neighboring San Joaquin Valley and Mojave Desert from entering the proposed AVA. Slope angles within the proposed Tehachapi Mountains AVA average between 3 and 11 degrees. Elevations are between 3,600 and 5,400 feet, with the majority of the area situated between 3,800 and 4,600 feet.

To the north of the proposed AVA are the steep, high, rugged slopes of the Piute Mountains. Slope angles in this region rise to over 30 degrees, and the mountain summits reach over 6,000 feet, with nearby Bear Mountain reaching 6,913 feet. To the east, the land falls away at slope angles over 30 degrees until it reaches the relatively flat valley floor of the Mojave Desert. Elevations to the east of the proposed AVA average 2,600 feet. To the south of the proposed AVA, slope angles are also over 30 degrees as the land rises to the summits of the Tehachapi Mountains, with elevations rising over 7,700 feet at the peak of Cummings Mountain. West of the proposed AVA, the terrain drops sharply at angles over 30 degrees to elevations below 500 feet near the city of Bakersfield in the San Joaquin Valley.

The topography of the proposed AVA has an effect on viticulture. According to the petition, the proposed Tehachapi Mountains AVA's location in a mountain pass allows for successful viticulture, even at high altitudes. The petition notes that wine grapes are generally grown below 3,000 feet within the United States and around the world, due to colder temperatures at higher elevations. However, prevailing west winds from the San Joaquin Valley and east winds off the Mojave Desert allow temperatures to be sufficiently warm within the proposed AVA for grapes to be grown at elevations over 4,000 feet. Also within the proposed AVA, gentle slope angles reduce the risk of erosion and allow cold air to drain away from vineyards. Finally, the petition notes that the intensity of sunlight, especially in the short ultraviolet wavelengths, increases with altitude. As a result, grapes growing at high altitudes within the proposed AVA are exposed to higher intensity ultraviolet light, which stimulates synthesis of phenolic molecules. These molecules allow grapes to develop deep colors and thick skins, which leads to more concentrated, tannic wines.

Climate

The petition states that the altitude at which wine grapes can be grown successfully is limited by events that can permanently damage or kill vines, such as spring and fall frost events and low winter temperatures. Vitis vinifer a grapevines suffer permanent damage at temperatures below about 0 to −5 degrees Fahrenheit (F). The petition states that typical winter lows within the proposed Tehachapi Mountains AVA range from 35 to 26 degrees F. Further, the petitioner provided data from 2007 through 2016 showing that there was only one year where the minimum temperature within the proposed AVA dropped below 10 degrees F, and that for five other years the minimum temperature within the proposed AVA was 15 degrees F or more. However, the petition states that the number of hours per day spent at the maximum daily temperature is typically longer than the number of hours spent at the minimum daily temperature, as warmer winds from the Mojave Desert and San Joaquin Valley increase after dawn. As a result, vineyards in the proposed AVA have been able to fully ripen late season varietals such as zinfandel, syrah, and cabernet sauvignon.

The petition included the following climate data from within the proposed AVA and locations to the west, east, north-northeast, and north-northwest of the proposed AVA. The data was collected between 2007 and 2016. Data was not available from stations due north, or to the south, of the proposed AVA.

The proposed Tehachapi Mountains AVA has cooler temperatures, a shorter growing season, and fewer growing degree days than the Bakersfield location to the west, the Edwards Air Force Base location to the east, the Hot Springs station to the north-northwest, and the Five Mile station to the north-northeast. This is to be expected, since the proposed AVA is at higher elevations than all four of these locations. The proposed AVA has warmer temperatures, a longer growing season, and more growing degree days than the Johnsondale location to the north-northwest, which is at higher elevations and is also more sheltered from the warm air of both the San Joaquin Valley and the Mojave Desert.

The petition states, however, that elevation alone does not explain the differences in temperature and growing degree day accumulations. Proximity to warm air from the Mojave Desert and, to a lesser extent, the San Joaquin Valley plays an important role. For example, the petition states that temperature generally falls as elevation rises. As the Walker Pass weather station, to the north-northeast of the AVA, is at significantly higher elevations than the proposed AVA, it should therefore have lower average temperatures than the proposed AVA, which would generally lead to a shorter growing season and fewer growing degree accumulations than the proposed AVA. However, because the Walker Pass station is on the eastern flank of a mountain range and is directly exposed to warm air rising from the Mojave Desert, it has warmer temperatures, a longer growing season, and greater growing degree accumulations than the proposed AVA.

According to the petition, the proposed Tehachapi Mountains AVA's proximity to the San Joaquin Valley and Mojave Desert affects viticulture. Winter temperatures are well above vine-killing temperatures, and the growing season length and growing degree day accumulations are sufficient to ripen late season varietals.

Summary of Distinguishing Features

In summary, the topography and climate of the proposed Tehachapi Mountains AVA distinguish it from the surrounding regions. The proposed AVA has lower elevations than the regions to the north and south, and higher elevations than the regions to the east and west. The proposed AVA has gentler slope angles than are found in each of the surrounding regions. The proposed AVA has warmer temperatures and a longer growing season than a higher, more isolated region to the north-northwest, and lower temperatures and a shorter growing season than lower-elevation regions to the east, west, north-northeast, and a region in the north-northwest. The proposed AVA is cooler and has a shorter growing season than Walker Pass to the north-northeast, which is at higher elevations but is more directly exposed to warm winds from the Mojave Desert.

TTB Determination

TTB concludes that the petition to establish the 58,000-acre Tehachapi Mountains AVA merits consideration and public comment, as invited in this notice of proposed rulemaking.

Boundary Description

See the narrative description of the boundary of the petitioned-for AVA in the proposed regulatory text published at the end of this proposed rule.

Maps

The petitioner provided the required maps, and they are listed below in the proposed regulatory text. You may also view the proposed Tehachapi Mountains AVA boundary on the AVA Map Explorer on the TTB website, at https://www.ttb.gov/​wine/​ava-map-explorer.

Impact on Current Wine Labels

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. For a wine to be labeled with an AVA name, at least 85 percent of the wine must be derived from grapes grown within the area represented by that name, and the wine must meet the other conditions listed in § 4.25(e)(3) of the TTB regulations (27 CFR 4.25(e)(3)). If the wine is not eligible for labeling with an AVA name and that name 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 AVA name 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 an AVA name that was used as a brand name on a label approved before July 7, 1986. See § 4.39(i)(2) of the TTB regulations (27 CFR 4.39(i)(2)) for details.

If TTB establishes this proposed AVA, its name, “Tehachapi Mountains,” will be recognized as a name of viticultural significance under § 4.39(i)(3) of the TTB regulations (27 CFR 4.39(i)(3)). The text of the proposed regulation clarifies this point. Consequently, wine bottlers using the name “Tehachapi Mountains” in a brand name, including a trademark, or in another label reference as to the origin of the wine, would have to ensure that the product is eligible to use the AVA name as an appellation of origin if this proposed rule is adopted as a final rule.

Public Participation

Comments Invited

TTB invites comments from interested members of the public on whether it should establish the proposed AVA. TTB is also interested in receiving comments on the sufficiency and accuracy of the name, boundary, soils, and other required information submitted in support of the petition. Please provide any available specific information in support of your comments.

Because of the potential impact of the establishment of the proposed Tehachapi Mountains AVA on wine labels that include the term “Tehachapi Mountains” as discussed above under Impact on Current Wine Labels, TTB is particularly interested in comments regarding whether there will be a conflict between the proposed AVA name and currently used brand names. If a commenter believes that a conflict will arise, the comment should describe the nature of that conflict, including any anticipated negative economic impact that approval of the proposed AVA will have on an existing viticultural enterprise. TTB is also interested in receiving suggestions for ways to avoid conflicts, for example, by adopting a modified or different name for the AVA.

Submitting Comments

You may submit comments on this notice by using one of the following methods:

• Federal e-Rulemaking Portal: You may send comments via the online comment form posted with this notice within Docket No. TTB-2020-0006 on “Regulations.gov,” the Federal e-rulemaking portal, at https://www.regulations.gov. A direct link to that docket is available under Notice No. 191 on the TTB website at https://www.ttb.gov/​wine/​wine-rulemaking.shtml. Supplemental files may be attached to comments submitted via Regulations.gov. For complete instructions on how to use Regulations.gov, visit the site and click on the “Help” tab.
• U.S. Mail: You may send comments via postal mail to the Director, Regulations and Rulings Division, Alcohol and Tobacco Tax and Trade Bureau, 1310 G Street NW, Box 12, Washington, DC 20005.

Please submit your comments by the closing date shown above in this notice. Your comments must reference Notice No. 191 and include your name and mailing address. Your comments also must be made in English, be legible, and be written in language acceptable for public disclosure. TTB does not acknowledge receipt of comments, and TTB considers all comments as originals.

In your comment, please clearly state if you are commenting for yourself or on behalf of an association, business, or other entity. If you are commenting on behalf of an 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 online comment form. If you comment via postal mail or hand delivery/courier, 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 to be confidential or inappropriate for public disclosure.

Public Disclosure

TTB will post, and you may view, copies of this notice, selected supporting materials, and any online or mailed comments received about this proposal within Docket No. TTB-2020-0006 on the Federal e-rulemaking portal, Regulations.gov, at https://www.regulations.gov. A direct link to that docket is available on the TTB website at https://www.ttb.gov/​wine/​wine_​rulemaking.shtml under Notice No. 191. You may also reach the relevant docket through the Regulations.gov search page at https://www.regulations.gov. For information on how to use Regulations.gov, click on the site's “Help” tab.

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 may also obtain copies of this proposed rule, all related petitions, maps and other supporting materials, and any electronic or mailed comments that TTB receives about this proposal at 20 cents per 8.5- x 11-inch page. Please note that TTB is unable to provide copies of USGS maps or any similarly-sized documents that may be included as part of the AVA petition. Contact TTB's Regulations and Rulings Division by email using the web form at https://www.ttb.gov/​contact-rrd, or by telephone at 202-453-1039, ext. 175, to request copies of comments or other materials.

Regulatory Flexibility Act

TTB certifies that this proposed regulation, if adopted, would not have a significant economic impact on a substantial number of small entities. The proposed 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.

Executive Order 12866

It has been determined that this proposed rule is not a significant regulatory action as defined by Executive Order 12866 of September 30, 1993. Therefore, no regulatory assessment is required.

Drafting Information

Karen A. Thornton of the Regulations and Rulings Division drafted this notice of proposed rulemaking.

List of Subjects in 27 CFR Part 9

• Wine

Proposed Regulatory Amendment

For the reasons discussed in the preamble, TTB proposes to amend title 27, chapter I, part 9, Code of Federal Regulations, as follows:

PART 9—AMERICAN VITICULTURAL AREAS

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

Authority: 27 U.S.C. 205.

Subpart C—Approved American Viticultural Areas

2. Subpart C is amended by adding § 9.__ to read as follows:

Footnotes