Federal Register / Vol. 57, No. 190 / Wednesday, September 30, 1992 / Proposed Rules 45009

make available to all competing retailers any program was not offered to all or, if offered, public hearing would be held on plan providing promotional payments or was not usable or suitable, or was otherwise October 14 and 15, 1992 at 10 a.m. The services to retailers. With these requirements administered in a discriminatory manner. Commission has decided to change the met, a packer can limit the area of its 6. Customer's liability.A customer, subject starting time for the public hearing to promotion. However, this section is not to the Packers and Stockyards Act, who intended to deal with the question of a knows, or should know, that it is receiving 9:30 a.m. on both days. The additional packer's liability for use of an area promotion payments or services which are not available time is necessary to accommodate all where the effect may be to injure the packer's on proportionally equal terms to its the witnesses who wish to testify. competition. competitors engaged in the resale of the same DATES: The Commission will hold the 5. Wholesaler or third partyperformance packer's products may be in violation of the hearing on October 14, 1992 at 9:30 a.m. of packer's obligations.A packer may, in provisions of the Act. Also, customers and on October 15, 1992 at 9:30 a.m. good faith, enter into written agreements with (subject to the Packers and Stockyards Act) intermediaries, such as wholesalers, that make unauthorized deductions from ADDRESSES: The hearing will be held at distributors or other third parties, including purchase invoices for alleged advertising or the Federal Election Commission, Ninth promoters of tripartite promotional plans, other promotional allowances may be Floor Hearing Room, 999 E Street, NW., which provide that such intermediaries will proceeded against under the provisions of the Washington, DC. perform all or part of the packer's obligations Act. FOR FURTHER INFORMATION CONTACT: under this part. However, the interposition of Example: A customer subject to the Act intermediaries between the packer and its should not induce or receive an allowance in Ms. Susan E. Propper, Assistant General customers does not relieve the packer of its excess of that offered in the packer's Counsel, 999 E Street, NW., Washington, ultimate responsibility of compliance with the advertising plan by billing the packer at DC 20463, (202) 219-3690 or toll free provisions "vendor of the Packers and Stockyards rates" or for any other amount in (800) 424-9530. Act. The packer, in order to demonstrate its excess of that authorized in the packer's Dated: September 24, 1992. good faith effort to discharge its obligations promotion program. under this part, should include in any such 7. Meeting competition. A packer charged Scott E. Thomas, agreement provisions that the intermediary with discrimination under the provisions of Vice Chairman,Federal Election will: the Packers and Stockyards Act may defend Commission. (1) Give notice to the packer's customers in its actions by showing that the payments [FR Doc. 92-23643 Filed 9-29-92; 8:45 am] conformity with the standards set forth in were made or the services were furnished in BILLING CODE 6715-01-M items 3(b) and (d), supra; good faith to meet equally high payments (2) Check customer performance in made by a competing packer to the particular conformity with the standards set forth in customer, or to meet equivalent services item 3(e), supra; furnished by a competing packer to the DEPARTMENT OF THE TREASURY (3) Implement the plan in a manner which particular customer. This defense, however, will insure its functional availability to the is subject to important limitations. For Tobacco and packer's customers in conformity with the Bureau of Alcohol, instance, it is insufficient to defend solely on standards set forth Firearms in item 3(c), supra (This the basis that competition in a particular must be done whether the plan is one devised market is very keen, requiring that special by the packer itself or by the intermediary 27 CFR Part 9 for allowances be given to some customers use by the if a packer's customers.); and packer is "to be competitive." (4) Provide certification in writing and [Notice No. 757; 92F-014P] at 8. Cost justification. If is no defense to a reasonable intervals that the packer's charge of unlawful discrimination in the customers have been and are being treated High Plains Viticultural Area in payment of an allowance or the furnishing of conformity with the agreement. a service for a packer to show that such AGENCY: Bureau A packer who negotiates such agreements of Alcohol, Tobacco payment or service could be justified through with its wholesalers, distributors or third and Firearms (ATF), Department of the savings in the cost of manufacture, sale, or party promoters will be considered Treasury. by the delivery. (Approved by the Office of Administration to have justified its "good Management and Budget under control ACTION: Notice of proposed rulemaking. faith" obligations under this section only if it number 0590-0001) accompanies such agreements with the SUMMARY: The Bureau of Alcohol, following supplementary measures: At [FR Doc. 92-23575 Filed 9-29-92; 8:45 am] Tobacco and Firearms (ATF) is regular intervals the packer takes affirmative BILLING CODE 3410-KD-M considering the establishment of a steps to verify that its customers are viticultural area located in Northwest receiving the proportionally equal treatment to which they are entitled by making spot Texas to be known as "Texas High FEDERAL ELECTION COMMISSION checks designed to reach a representative Plains." This proposal is the result of a cross section of its customers. Whenever petition filed by Clinton M. McPherson 11 CFR Parts 109, such spot checks indicate that the agreements 110 and 114 of Lubbock, Texas. are not being implemented in such a way that [Notice 1992-16] ATF believes that the establishment its customers are receiving such of viticultural areas and the subsequent proportionally equal treatment, the packer Independent Expenditures; Corporate use of viticultural area names as takes immediate steps to expand or to and Labor Organization Expenditures appellations of origin in labeling supplement such agreements in a manner and advertising allows wineries to reasonably designed to eliminate the AGENCY: Federal Election Commission. repetition or continuation of any designate the specific areas where the such ACTION: Change in MCFL public hearing discriminations in the future. used to make the wine were time. Intermediaries, subject to the Packers and grown and enables consumers to better Stockyards Act, administering promotional identify SUMMARY: On July 29, 1992, the the they purchase. assistance programs on behalf of a packer DATES: Written comments must be may be in violation of the Commission published proposed provisions of the received by November Packers and Stockyards Act, if they have regulations that would implement the 16, 1992. agreed to perform the packer's obligations Supreme Court's opinion in Federal ADDRESSES: Send written comments to: under the Act with respect to a program Election Commission v. Massachusetts Chief, Wine and Beer Branch; Bureau of whch they have represented to'be usable Citizens for Life, Inc., 479 U.S. 238 Alcohol, Tobacco and Firearms; P.O. and suitable for all the packer's competing (1986). See 57 FR 33548. The Notice of Box 50221; Washington, DC 20091-0221; customers if it should later develop that the Proposed Rulemaking announced that a Attn: Notice No. 757. 45010 Federal Register / Vol. 57, No. 190 / Wednesday, September 30, 1992 / Proposed Rules

FOR FURTHER INFORMATION CONTACT. . The elevation is from Tech University, contains a map of the Marjorie D. Ruhf, Wine and Beer 3,000 to 4,000 feet above sea level. growing regions in Texas as Branch, Bureau of Alcohol, Tobacco and Vineyards presently occupy broken down by counties. The western Firearms, 650 Massachusetts Avenue approximately 2,000 acres, but the boundary agrees with that proposed, but NW., Washington, DC 20226 (202-927- petitioner maintains that there is the area shown on the map extends 8230). growing interest in in the further to the north and slightly further the east and south. SUPPLEMENTARY INFORMATION: area. There are presently 4 wineries to active within the proposed area. Nearly The 1986-87 Texas Almanac and State Background half of all commercial wine grapes Industrial Guide published a map of the On August 23, 1978, ATF published grown in Texas are grown in the "vegetational areas" of Texas, showing Treasury Decision ATF-53 (43 FR 37672, proposed area. The petitioner states the High Plains as a somewhat larger 54624) revising regulations in 27 CFR many wines from Texas High Plains area than the one proposed, interrupted part 4. These regulations allow the grapes are achieving high acclaims in by a strip of "rolling plains" along the establishment of definite American national and international competitions. northern boundary of the proposed area. viticultural areas. The regulations also He attributes the excellent quality to the The Texas Water Plan, published by allow the name of an approved Texas High Plains' high elevation, cool the Texas Water Development Board in viticultural area to be used as an nights, rich soils, dry, disease free November, 1968, contains a map appellation of origin in the labeling and conditions, and constant breezes. showing Texas climatological divisions, advertising of wine. Evidence of Name including the High Plains. The eastern On October 2, 1979, ATF published boundary agrees with that proposed, but Treasury Decision ATF-60 (44 FR 56692) The petitioner submitted evidence the area shown on the map extends which added a new part 9 to 27 CFR, that the name "Texas High Plains" is further to the west, north and south. providing for the listing of approved used to refer to a large portion of the According to the petitioner, the American viticultural areas. Section and that the area proposed boundaries omit portions of 4.25a(e)(1), title 27, CFR, defines an specified in the petition is within the the larger area known as the "Texas known American viticultural area as a larger area locally or nationally High Plains" because they have been delimited grape-growing region by that name. The evidence includes: found to be unsuitable for commercial A Texas Highway Department poster distinguishable by geographical viticulture. The petitioner reports that, which shows a map of the State of features, the boundaries of which have over the last 20 years, observers have area in the been delineated in subpart C of part 9. Texas, with a shaded found that risk of freeze damage became northwest portion of the state Section 4.25a(e)(2) outlines the intolerable along the designated as the Texas High Plains. procedure for proposing an American border (the western boundary of the The east and west boundaries of the viticultural area. Any interested person proposed area) and to the north of the may petition ATF to establish a grape- shaded area agree with the proposed proposed boundaries. This change in the boundaries, though the shaded area growing region as a viticultural area. minimum temperature during winter extends further to the north and south The petition should include: coincides roughly with the 4,000 foot than the proposed area. (a) Evidence that the name of the of these areas, higher than The Wine Spectator, February 29, elevation proposed viticultural area is locally most of the proposed area. 1992, edition contains an article entitled and/or nationally known as referring to In many of the narrative descriptions in the petition; "Dawn of New Texas Wine" which the area specified and maps submitted with the petition, evidence that refers to the "High Plains around (b) Historical or current an escarpment called the "Caprock" is area Lubbock, where many of the best wine the boundaries of the viticultural used as the eastern boundary of the are as specified in the petition; grapes grow". (c) Evidence relating to the The Texas Monthly, September, 1991, Texas High Plains. Since this on the geographical features (climate, soil, edition describes a vast area in escarpment is not represented U.S.G.S. maps as a single line, the elevation, physical features, etc.) which northwest Texas known as the High 3,000 foot distinguish the viticultural features of Plains region. petitioner has selected the the proposed area from surrounding The Los Angeles Times, June 1, 1987, contour line as the eastern boundary for areas; edition carried an article titled "Texas the proposed area. This contour line (d) A description of the specific Wine: Taste it and Believe It" which runs to the west of the escarpment; in boundaries of the viticultural area, described several wineries on the some places it appears to be as much as based on features which can be found "Texas high plains"-Pheasant Ridge 15 miles to the west. on United States Geological Survey and Llano Estacado, both within the The southern boundary of the (U.S.G.S.) maps of the largest applicable proposed area. proposed area was chosen by the scale; and Spirit magazine, September, 1986, petitioner because, he states, it (e) A copy of the appropriate U.S.G.S. edition carried an article titled "The corresponds to changes in temperature, map(s) with the boundaries prominently Wine Industry-Coming of Age in soil type and wind which alter the marked. Texas?" which referred to the High growing conditions significantly. His Plains as an area in which the soil evidence will be discussed further in the Petition would be compatible with European sections on soil and climate. ATF has received a petition from vines. Viticultural History Clinton M. McPherson proposing to Evidence of Boundaries establish a viticultural area in the Texas Records of the Texas Agricultural panhandle to be known as "Texas High Evidence that the boundaries of the Experiment Station in Lubbock show Plains." The proposed viticultural area proposed area are as specified in the studies were done between 1909 and contains approximately 8 million acres petition includes the following: 1937 on the adaptability of many grape of flat, intensively cultivated land with The Fall, 1991, Market Report, a cultivars, including , at the cotton, sorghum and wheat the publication of the Texas Wine station. In the 1950s and '60s, French- predominant crops, irrigated from the Marketing Research Institute, Texas American hybrids, American and Federal Register / Vol. 57, No. 190 / Wednesday, September 30, 1992 / Proposed Rules 45011 vinifera cultivars were planted in "great American desert," suitable only Proposed Boundary research plots at Texas Tech University, for grazing, until late in the nineteenth also in Lubbock. As a result of this The boundary of the proposed Texas century, when the land was found to be High Plains viticultural area may be work, commercial viticulture began in fertile. According to a report on the area in 1945, and was expanded in found on six United States Geological Conservation Tillage issued by the Survey (U.S.G.S.) maps with a scale of the 1960s and again in 1973. Llano Texas Agricultural Experiment Station Estacado, the first winery in the area, 1:250,000. The boundary is described in (TAES) in July, 1987, soils in the § 9.144. had its first crush in 1976. Three more proposed area vary from predominantly wineries have been developed in the brown clay loams with clay textured Executive Order 12291 Texas High Plains since then: Pheasant subsoils in the north to fine sandy loams Ridge, Teysha and La Escarbada XIT. It has been determined that this in the central and southern regions. The proposed regulation is not a major In a report on the 1985 Lone Star State Ogallala aquifer, which supports Wine Competition, Greater Lubbock, in regulation as defined in Executive Order irrigation within the proposed area, ends 12291 and a regulatory impact analysis its November, 1985, issue, noted that near the proposed southern boundary. wineries within the proposed area won is not required because it will not have The lack of available groundwater an annual effect on the economy of $100 the only gold medal awarded, 60% of the results in soils which are sandy, shallow silver medals, and nearly 40% of the million or more; it will not result in a and highly eroded to the south and east major increase in costs or prices for bronze medals in the statewide of the proposed area. The petitioner competition. told consumers, individual industries, The Los Angeles Times, of one vineyard south of the proposed Monday, June 1, 1987, article, "Texas Federal, State, or local government Wine: Taste It and Believe It" boundary which was abandoned due to agencies, or geographic regions; and it mentioned awards won by Llano drifting sand. will not have significant adverse effects Estacado and Pheasant Ridge at the Climate on competition, employment, 1986 San Francisco Fair and Wine investment, productivity, innovation, or Competition, competing against nearly According to the petitioner, the on the ability of United States-based 2,000 other wines, "including a bunch proposed area is characterized by low enterprises to compete with foreign- from ." annual rainfall, moderate temperature, based enterprises in domestic or export and variable, but gentle, wind. markets. Geographical Features According to a report on Irrigation Regulatory Flexibility Act The petitioner provided the following Water Management by the Texas Water evidence relating to features which he Resources Institute in August, 1987, It is hereby certified that this contends distinguish the proposed average annual rainfall within the regulation will not have a significant viticultural area from the surrounding proposed area varies from 14 inches economic impact on a substantial areas: near the western boundary to 20 inches number of small entities. Accordingly, a regulatory flexibility analysis is not Topography in the east. The report notes that the greatest monthly rainfall in the area required because the proposal, if The petition states that the proposed occurs between May and September, a promulgated as a final rule, is not area is distinguished from the fact the petitioner attributes to warm expected (1) to have secondary, or surrounding area in part by its elevation. moist air carried into the area from the incidental effects on a substantial According to the petitioner, the most Gulf of Mexico. This tropical air number of small entities; or (2] to pronounced change in terrain occurs at sometimes brings moderate to heavy impose, or otherwise cause a significant the proposed eastern boundary of the thunderstorms with hail and intense increase in the reporting, recordkeeping, area where an escarpment "provides an winds. According to a chart from TAES, or other compliance burdens on a east facing wall 200-1,000 feet high annual precipitation gradually increases substantial rwijmber of small entities. along the entire east boundary of the - to the east of the proposed area, and Paperwork Reduction Act proposed appellation, separating the decreases to the west. Texas High Plains from the Rolling The provisions of the Paperwork Plains to the east." The proposed area is Other charts from TAES compare the Reduction Act of 1980, Public Law 96- described in the Texas Almanac as the annual temperatures in various parts of 511, 44 U.S.C. chapter 35, and its Texas. Mean annual temperature varies "largest level plain of its kind in the ° implementing regulations, 5 CFR part United States." The high plains rise from 580 on the north to 61 on the south 1320, do not apply to this notice of gradually from 3,000 feet in the east to of the proposed area, a range which the proposed rulemaking because no more than 400 feet in spots along the petitioner claims is important to the requirement to collect information is New Mexico border. quality potential of wine grapes. The proposed. Underlying the Texas High Plains is proposed viticultural area's coldest the Ogallala Aquifer. The Texas temperatures range just above and Public Participation Almanac notes that this is an important below 0, with colder temperatures to ATF requests comments from all source of irrigation water for crops the north, and warmer temperatures to interested parties. We particularly grown in the area. The area has no the south. According to the petitioner, request comments concerning the name major rivers, but there are numerous growers to the north of the proposed and boundaries of the proposed area. "playas" (small intermittent lakes) boundary have abandoned plantings The area described in the petition is scattered through the area which catch due to frequent freeze loss. very large, but the evidence shows that water after rains and allow it to The petitioner also notes that, due to the name "High Plains" applies to a percolate back to the aquifer. the low relative humidity on the High much larger area which extends beyond Plains, there is a very low incidence of the borders of the State of Texas to the Soil such disease and pest problems as west and north, and further south within The authors of Our Texas, Ralph W. downy mildew, Pierces disease, .the State. The use of the name "Texas Steen and Frances Donecker, state that , and black rot, which are High Plains" to describe the proposed the High Plains were considered a found in other parts of Texas. area is only warranted if there is a 45012 Federal ReSister / Vol. 57, No. 190 1 Wednesday, September 30, 1992 / Proposed Rules difference in growing conditions which Sukpart C-Approved American New Mexico, to the beginning point on coincides with the podItical boundaries. Viticttural Areas the obbs, New Mexico; Texas, U.S.G.S. We ae also concerned that use of the map. § 9.144 Texas High Plains. name "Texas High Plains" for a Approved: September 2a.1092. vitioultural area which is smnaler than (a) Name. The nne of the viticultural area described in this section is "Texas Stephen. llizgigg. the area commonly cailed by that name Director. may tend to confuse consumers. We High Plains." (b) Approved maps. The appropriate [FR Doc. 12-23700 Filed 9-2-9 ,8:40 aml request comments as to whether there maps for deermining the boundary of BILLING 0 E 44-4--4 are areas suitable for viticulture within the Texas High Plains viticultural area the larger area known as "Texas High are six U.SAG.S. topegraphical maps of ENWVIROWMENTAt PROTECTION Plains" which would be excluded from the 1:250,09 scale. They are titled: the proposed Viticultural area. {I) "Clovis, New Mexio; Texas" 1954, AGENCY Conmmenters who believe a potential for revised 173. confusion exists should suggest (2) "Browrfield, Texa; New Mexico" 40 CPR fart62 a ternate names for the proposed area. 1954. revised 1973. Comments received on or before the 43) "Hobbs, New Mexico; Texas" 2954. ILA-4-1-M2,0 f-4t-4S54-M closing date will be carefly revised -197. considered. Comments received after (4) "Plainview, Texas" 1954. revised Approval ad P mmulgagen At Air that date will be given the same 1974. Quaft Implenutalm Ran& consideration if it is practical to do so, (5) "Lubbock, Texas" 1954, revised Louisiana; Coruclim IfDeoleocies In VOC RAT Noas but assurance of consideration cannot 1975. be given except as to cemments (6) "Big Spring, Texas" 1954, revised 1975. AGENCY: Lvironmental Protection received on or before the cleoing date. (c) Boundary.The Texas High lains Agency {EPA). ATF wil not recognize any comment viticultural area is located in Armstrong, ACTIK: Proposed rilemakin. as confiderftial. Comments may be Bailey, Burden, Briscoe, Castro, disclosed to the public. Any material Cochran, Crosby, Dawson, Deaf Smith, SUMMARY: This notice proposes to which a commenter considers to be Dickens, Floyd, Gahe, Garza, Hale, approve the revisions tethe 9tatef confidential or inappropriate for Hookley, Lamb, Lubbock, Lynn, Motley, Lottiiana's air "aky egulations disclosure to the psblic should not be Parmer, Randall, Swisher, Terry and conoemirg reasonaly aivable cotol included in te commerrt. The name of Yoakum Counties, Texas. Ihe boudary technology JRALC-T far enirroes ing the person submitting a comment is not is as follows- volatile organic oimomdt mid reoodify exempt from disclosure. During the f1) Beginning on the Hobbs, New the federally-approved State comment period, ary person may Mexico; Texas, map at the intersection Implementation Plan (SIP) to match the request an opportunity to present oral of the Texas-New Mexico border and State's regulatory code. This action is saums. testimony at a public hearing. However, U.S. Route 180 east of Hobbs, New neoessary xr.several Frd,-on May 26, 1986, EPA notifiedt ke State d the Director reserves the right to Mexico, Louisiana that its SIP fur ataining the determine, in light of all circumstances, (2) The boundary follows US Route national ambievt air quality standard whether a public hearing will be held. 180 east through Seninole, Texas and onto the Big Spring, Texas. U.SG.S. map (NAAQS) for ozone w sbstaially Urafung bSrMaska where it intersects with the 8000 foot inadequate as ft applied to the seven parishes nomprisog the Satm Rage The principal author of this document contour line in the town of Lamesa; (3)The boundary then follows the ozone nonaltainment erda: Asoension, is Marjorie D. Ruhf, Wine and Beer 3000 foot contour line in a geuerally East Batom Rouge, lbertille, Liminstom. Branch, Bureau of Alcohol, Tobacco and northeasterly direction acoss the Pointe Coupee. St. tames, amd West Firearms. U.S.G.S. maps of Big Spring and Baton Range. This wtioe cale for the List of Subjects In 27 CFR Part 9 Lubbock, Texas State to cairet deficiencies is its 14) The boundary continues along the Volatile OrganicCaoaousd (VOC). Administrative practices and 3000 foot contour line onto the map of RACT rules as the! applied to hose procedures. Consumer protection, Plainview, Texas, where it follows a parishes. Second n Novenisr . 198. Viticultural areas, and Wine. generally northwesterly direction until it EPA notified Louisiana Awl its ozme SIP was substantially inadeuate as it Authority and Issuance intersects with State Highway 217 approximately 12 miles east of Canyon, applied to Calcasieu Parish. wiir Title 27, Code of Federal Regulations, Texas; comprises fie Lake Chads ozone part 9, American Viticultural Areas, is (5) The boundary then follows State nonattainment area, ad also called for amended as follows- Highway 217 west to Canyon. Texas, the State to corect eKdsting deficiencies leaves State Highway 217 and proceeds in its VOC RACT rules as these applied PART 9--UAERICAN VIT40ULTURAL in a straight line in a northwesterly to Calcauieu Parish. 1hird, ihe Clean Air AREAS direction until it intersects with U.S. Act, as raended on November 15, 10, Route 60, still within Canyon, Texas; required the State to revise its SIP to Pasraph 1. The aithority citation for (6) The boundary then follows U.S. correct VOC RACT deficdencies within part 9 continues to read as follows: Route 60 in a 'southwesterly direction six months of enactment. Finali. the Autlority- 27 U.S.C. 205. onto the U.S.G.S. map of Clovis, New VOC RACT rnles mus be rewirified to Mexioo; Texas, where it intersects the provide consistency between the State's Par., LSubpart C is amended by Texas-New Mexico border: code and the SIP. The effect of today's adding J 9.144 to read as follows: (7) The boundary then follows the propsed action will be to oorrect Texas-New Mexico border south, across existing deficienoies is the VOC RACT the U.S.G.S. map of Brownfield, Texas; rules of the Louisiana SIP as Tequtied by