DEPARTMENT OF THE TREASURY



Bureau of Alcohol, Tobacco and Firearms



27 CFR Part 9



[T.D. ATF-395 Re: Notice No. 851]

RIN 1512-AA07



 

Texas Davis Mountains Viticultural Area (97-105)



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

the Treasury.



ACTION: Final rule, Treasury decision.



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SUMMARY: The Bureau of Alcohol, Tobacco and Firearms (ATF) is 

establishing a viticultural area located in Jeff Davis County, Texas, 

to be known as ``Texas Davis Mountains.'' The petition for this 

viticultural area was filed by Maymie Nelda Weisbach of Blue Mountain 

Vineyard, Inc. ATF believes that the establishment of viticultural 

areas and the subsequent use of viticultural area names as appellations 

of origin in wine labeling and advertising allows wineries to designate 

the specific areas where the grapes used to make the wine were grown 

and enables consumers to better identify the wines they purchase.



EFFECTIVE DATE: May 11, 1998.



FOR FURTHER INFORMATION CONTACT: Marjorie D. Ruhf, Regulations 

Division, Bureau of Alcohol, Tobacco and Firearms, 650 Massachusetts 

Avenue, NW., Washington, DC 20226 (202-927-8230).



SUPPLEMENTARY INFORMATION:



Background



    On August 23, 1978, ATF published Treasury Decision ATF-53 (43 FR 

37672, 54624) revising regulations in 27 CFR part 4. These regulations 

allow the establishment of definite American viticultural areas. The 

regulations also allow the name of an approved viticultural area to be 

used as an appellation of origin in the labeling and advertising of 

wine.

    On October 2, 1979, ATF published Treasury Decision ATF-60 (44 FR 

56692) which added a new part 9 to 27 CFR, providing for the listing of 

approved American viticultural areas. Section 4.25a(e)(1), title 27, 

CFR, defines an American viticultural area as a delimited grape-growing 

region distinguishable by geographical features, the boundaries of 

which have been delineated in subpart C of part 9. Section 4.25a(e)(2) 

outlines the procedure for proposing an American viticultural area. Any 

interested person



[[Page 11827]]



may petition ATF to establish a grape-growing region as a viticultural 

area. The petition should include:

    (a) Evidence that the name of the proposed viticultural area is 

locally and/or nationally known as referring to the area specified in 

the petition;

    (b) Historical or current evidence that the boundaries of the 

viticultural area are as specified in the petition;

    (c) Evidence relating to the geographical features (climate, soil, 

elevation, physical features, etc.) which distinguish the viticultural 

features of the proposed area from surrounding areas;

    (d) 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

    (e) A copy of the appropriate U.S.G.S. map(s) with the boundaries 

prominently marked.



Petition



    ATF has received a petition from Maymie Nelda Weisbach, of Blue 

Mountain Vineyard, Inc., proposing to establish a viticultural area in 

Jeff Davis County, Texas, to be known as ``Texas Davis Mountains.'' The 

viticultural area is located in the Trans-Pecos region of west Texas. 

The entire area contains approximately 270,000 acres. The petitioner 

stated that approximately 40 acres are planted to vineyards, and that 

Blue Mountain Vineyard is the only commercial grower currently active 

within the proposed viticultural area.



Notice of Proposed Rulemaking



    In response to this petition, ATF published a notice of proposed 

rulemaking, Notice No. 851, in the Federal Register on May 6, 1997 [62 

FR 24622], proposing the establishment of the Davis Mountains 

viticultural area. The notice requested comments from interested 

persons by July 7, 1997.



Comments on Notice of Proposed Rulemaking



    ATF received five letters of comment in response to Notice No. 851. 

The petitioner wrote to give additional information about growers in 

the area. The Honorable Peggy Robertson, County Judge of Jeff Davis 

County, Texas, wrote to express support for the establishment of the 

viticultural area. Dr. Charles O. McKinney, Director of Research for 

the University of Texas System, wrote to support the establishment of 

the Davis Mountains area and comment on the boundaries. James D. 

Voorhees, Esq., of Davis, Graham & Stubbs, LLP, Attorneys at Law, wrote 

to express support for establishment of the area and commented on the 

proposed name. George Ray McEachern, Professor and Extension 

Horticulturist at the Texas A&M University System's Texas Agricultural 

Extension Service, wrote to support the designation of the area as 

``Texas Davis Mountains.'' The comments on specific proposals will be 

discussed in the supplementary information covering such proposals.



Evidence of Name



    The petitioner provided evidence that the name ``Davis Mountains'' 

is locally known as referring to the area specified in the petition, 

and suggested that the area be designated as ``Texas Davis Mountains'' 

to aid in national recognition of the area. She noted that, outside of 

the State of Texas, the name Davis Mountains may not be well known. 

Evidence supporting the use of the name ``Davis Mountains'' includes:

    (a) The name ``Davis Mountains'' is used to describe the northern 

portion of the viticultural area on a U.S.G.S. map submitted with the 

petition (Mount Livermore, Texas--Chihuahua). There is a park named 

``Davis Mountain State Park'' in the southeastern portion of the 

viticultural area.

    (b) The 1952 edition of The Handbook of Texas, published by the 

Texas State Historical Association, describes the Davis Mountains. The 

location and other features described in this entry are consistent with 

the petition.

    (c) The 1968 edition of Texas Today, a book in the Harlow State 

Geography Series, from the Harlow Publishing Corporation, describes the 

Davis Mountains as the most extensive and among the highest of the 

Texas mountain groups.

    (d) Finally, the Champion Map of Texas, and the Exxon Travel Club 

Map of the United States, both identify the Davis Mountains by name.

    After reviewing available resources and finding no references to 

any other ``Davis Mountains,'' ATF used the name ``Davis Mountains'' 

unmodified by the word ``Texas'' in the notice; however, ATF also 

solicited comments on the need for the additional designation of 

``Texas'' for the proposed viticultural area. ATF proposed using the 

name ``Davis Mountains'' (as opposed to ``Texas Davis Mountains'') 

based upon national recognition of the name ``Davis Mountains'' as an 

area in Texas, known both as the site of the McDonald Observatory and 

as a tourist destination for its history, scenery and wildlife. In 

response to this request for comments on the name of this proposed 

viticultural area, James D. Voorhees, Esq., of Davis, Graham & Stubbs, 

LLP, Attorneys at Law, wrote:



    * * * there may be a wine-growing area in one of the midwestern 

states which is not yet designated as a viticultural area, but which 

is known locally as ``Davis Mountains''. * * * this would support 

the designation of the viticultural area sought by Mrs. Weisbach as 

``Texas Davis Mountains.''



In order to avoid possible consumer confusion, ATF is adopting the name 

``Texas Davis Mountains'' in this final rule. ATF believes it is better 

to allow this viticultural area to bear a distinguishing name from its 

inception rather than revise the name later after the establishment of 

another area with a similar name.



Evidence of Boundaries



    The petitioner chose highways to mark the boundary of the 

viticultural area because these highways parallel geographic features 

such as canyons, creeks and escarpments, which represent natural 

boundaries between the mountains and the surrounding desert and define 

the area. In support of this approach, she provided a copy of 

``Texas,'' the Houston Chronicle Magazine, for June 2, 1996. The cover 

story was ``High Mountain Vistas--Driving the 73-mile Loop Around the 

Davis Mountains.'' In a map associated with the article, the routes 

used for the driving tour are the same as those selected by the 

petitioner, except the northern boundary. The driving tour 

recommendation followed a route to the north of the proposed northern 

boundary, which the petitioner drew using other features. Dr. Charles 

O. McKinney, Director of Research for the University of Texas System, 

also noted in his comment that the area known as Davis Mountains 

extends more to the north than indicated by the boundaries, but made no 

specific suggestion for amendment of the northern boundary. No change 

was made to the northern boundary as a result of this comment.

    During the comment period, the petitioner wrote to say that she had 

learned about two additional growers, one of them within the proposed 

boundary (in the Davis Mountain Resort area), and another just outside 

the boundary at the southeast corner of the proposed area. She asked 

that the border be redrawn to include the vineyard just outside the 

proposed boundary and noted ``the same grape growing conditions would 

prevail'' in that nearby area. Dr. McKinney also noted his support for 

expanding the viticultural area to include the vineyard to the 

southeast, saying the ``grapes from this vineyard are very similar in 

quality and growing characteristics as vineyards



[[Page 11828]]



located a few miles away, but within the proposed viticultural area.'' 

ATF is adopting this proposed change and amending the boundary to 

include the additional vineyard. With the addition of these two 

vineyards, the viticultural area has three growers and approximately 50 

acres planted to grapes.



Geographical Features



    The viticultural area is described in Great Texas Getaways, 

copyright 1992, by Ann Ruff, as follows:



    No matter which way you drive into the Davis Mountains you will 

have to face the barren terrain without the taste of cool water. But 

when you reach this wonderful oasis, those long, dreary miles are 

more than worth the reward. Here the days are fresh and cool, the 

nights brisk, and the scenery fantastic.



    The viticultural area is distinguishable from surrounding areas 

primarily by its altitude, which contributes to the geographic and 

climatic features which provide for excellent grape-growing.

    The petitioner provided the following evidence of the viticultural 

area's distinctive character:



Topography



    The U.S.G.S. topographic maps used to define the viticultural area 

show a mountainous area varying in elevation from 4,500 to 8,300 feet, 

surrounded by flatter terrain. The petitioner adds that these mountains 

are the second-highest range in Texas. The northern and eastern limits 

are clearly defined by escarpments. Sharp boundaries in the west and 

south, however, are lacking as the same formations continue into the 

Ord and Del Norte Mountains. The Chihuahua desert extends for miles in 

all directions, its gently rolling grasses interspersed with yucca and 

agave.



Soil



    The Davis Mountains were created about 35 million years ago by the 

same volcanic thrust that formed the front range of the Rockies. The 

mountains are composed of granitic, porphrytic and volcanic rocks, as 

well as limestones of various ages.



Climate



    The cover story in ``Texas,'' the Houston Chronicle Magazine, for 

June 2, 1996, titled ``High mountain vistas, driving the 73-mile loop 

around the Davis Mountains'' by Leslie Sowers, described the 

viticultural area as a ``mountain island * * * that is cooler, wetter, 

and more biologically diverse than the vast plains of the Chihuahua 

desert that surround it.'' The article went on to note that the Davis 

Mountains receive 20 inches of rainfall a year, contrasted with 10 

inches a year in the surrounding desert.



Boundary



    The boundary of the Texas Davis Mountains viticultural area may be 

found on two United States Geological Survey (U.S.G.S.) maps with a 

scale of 1:100,000. The boundary is described in Sec. 9.155.



Executive Order 12866



    It has been determined that this proposed regulation is not a 

significant regulatory action as defined in Executive Order 12866. 

Accordingly, this final rule is not subject to the analysis required by 

this Executive Order.



Regulatory Flexibility Act



    It is hereby certified that this regulation will not have a 

significant economic impact on a substantial number of small entities. 

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 a particular area. No new requirements are imposed. Accordingly, a 

regulatory flexibility analysis is not required.



Paperwork Reduction Act



    The provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 

3507(j)) and its implementing regulations, 5 CFR Part 1320, do not 

apply to this final rule because no requirement to collect information 

is imposed.



Drafting Information



    The principal author of this document is Marjorie D. Ruhf, 

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. 9.155 to read as 

follows:





Sec. 9.155  Texas Davis Mountains.



    (a) Name. The name of the viticultural area described in this 

section is ``Texas Davis Mountains.''

    (b) Approved map. The appropriate maps for determining the boundary 

of the Texas Davis Mountains viticultural area are two U.S.G.S. metric 

topographical maps of the 1:100 000 scale, titled:

    (1) ``Fort Davis, Texas,'' 1985.

    (2) ``Mount Livermore, Texas--Chihuahua,'' 1985.

    (c) Boundary. The Texas Davis Mountains viticultural area is 

located in Jeff Davis County, Texas. The boundary is as follows:

    (1) The beginning point is the intersection of Texas Highway 17 and 

Farm Road 1832 on the Fort Davis, Texas, U.S.G.S. map;

    (2) From the beginning point, the boundary follows Highway 17 in a 

southeasterly and then southwesterly direction until it reaches the 

intersection of Limpia Creek with the unnamed stream which flows 

through Grapevine Canyon on the Fort Davis, Texas, U.S.G.S. map;

    (3) The boundary then proceeds in a straight line in a 

southwesterly direction until it meets Highway 118 at a gravel pit 1\3/

4\ miles southeast of the intersection of Highway 118 and Highway 17;

    (4) The boundary then proceeds in a straight line east by southeast 

until it meets Highway 166 at its junction with Highway 17;

    (5) The boundary then follows Highway 166 in a southwesterly 

direction onto the Mt. Livermore, Texas-Chihuahua, U.S.G.S. map;

    (6) The boundary then continues to follow Highway 166 in a westerly 

direction;

    (7) The boundary then continues to follow Highway 166 as it turns 

in a northerly and then northeasterly direction to the point where it 

meets Highway 118;

    (8) The boundary then follows Highway 118 in a northerly direction 

until it reaches a point where it intersects with the 1600 meter 

contour line, just north of Robbers Roost Canyon;

    (9) The boundary then proceeds in a straight line due east for 

about two miles until it reaches the 1600 meter contour line to the 

west of Friend Mountain;

    (10) The boundary then follows the 1600 meter contour line in a 

northeasterly direction until it reaches the northernmost point of 

Friend Mountain;

    (11) The boundary then diverges from the contour line and proceeds 

in a



[[Page 11829]]



straight line east-southeast until it reaches the beginning point of 

Buckley Canyon, approximately three fifths of a mile;

    (12) The boundary then follows Buckley Canyon in an easterly 

direction to the point where it meets Cherry Canyon;

    (13) The boundary then follows Cherry Canyon in a northeasterly 

direction to the point where it meets Grapevine Canyon on the Mt. 

Livermore, Texas-Chihuahua, U.S.G.S. map;

    (14) The boundary then proceeds in a straight line from the 

intersection of Cherry and Grapevine Canyons to the peak of Bear Cave 

Mountain, on the Fort Davis, Texas, U.S.G.S. map;

    (15) The boundary then proceeds in a straight line from the peak of 

Bear Cave Mountain to the point where Farm Road 1832 begins;

    (16) The boundary then follows Farm Road 1832 back to its 

intersection with Texas Highway 17, at the point of beginning.



    Dated: February 6, 1998.

John W. Magaw,

Director.



    Approved: February 23, 1998.

Dennis M. O'Connell,

Acting Deputy Assistant Secretary (Regulatory, Tariff and Trade 

Enforcement).

[FR Doc. 98-6005 Filed 3-10-98; 8:45 am]

BILLING CODE 4810-31-U