Federal Register / Vol. 68, No. 128 / Thursday, July 3, 2003 / Rules and Regulations 39833

1. Arla Foods Ingredients amba, ‘‘Petition regulations to carry out the Act’s If you fall in this category, you must to Amend the Regulation for 21 CFR Sec. provisions. ensure that your existing products are 101.80 to Authorize a Noncariogenicity Regulations in 27 CFR part 4, Labeling eligible to use the name of the Dental Health Claim for D-tagatose,’’ CP–1, and Advertising of Wine, allow the viticultural area as an appellation of Docket No. 02P–0177, January 9, 2002. establishment of definitive viticultural origin. For a wine to be eligible, at least ■ Accordingly, the interim final rule areas. The regulations allow the name of 85 percent of the grapes in the wine amending 21 CFR 101.80 that was an approved viticultural area to be used must have been grown within the published in the Federal Register of as an appellation of origin on wine viticultural area. December 2, 2002 (67 FR 71461), is labels and in wine advertisements. Title If the wine is not eligible for the adopted as a final rule without change. 27 CFR Part 9, American Viticultural appellation, you must change the brand Dated: June 30, 2003. Areas, contains the list of approved name and obtain approval of a new Jeffrey Shuren, viticultural areas. label. Different rules apply if you label Assistant Commissioner for Policy. What Is the Definition of an American a wine in this category with a label [FR Doc. 03–16949 Filed 7–1–03; 10:06 am] Viticultural Area? approved prior to July 7, 1986. See 27 BILLING CODE 4160–01–S CFR 4.39(i) for details. Additionally, if Section 4.25a(e)(1), title 27 CFR, you use the viticultural area name on a defines an American viticultural area as wine label in a context other than a delimited grape-growing region appellation of origin, the general DEPARTMENT OF THE TREASURY distinguishable by geographical prohibitions against misleading features, the boundaries of which have representation in part 4 of the Alcohol and Tobacco Tax and Trade been delineated in subpart C of part 9. regulations apply. Bureau The establishment of viticultural areas allows the identification of regions Rulemaking Proceeding 27 CFR Part 9 where a given quality, reputation, or ATF–TTB Transition [TTB T.D.–3; Re: Notice No. 957] other characteristics of the wine is essentially attributable to its geographic Effective January 24, 2003, the Homeland Security Act of 2002 divided RIN 1512–AC70 origin. The establishment of viticultural areas is intended to help wineries to the Bureau of Alcohol, Tobacco and Seneca Lake Viticultural Area (99R– accurately describe the origin of their Firearms (ATF) into two new agencies, 260P) wines to consumers and to help the Alcohol and Tobacco Tax and Trade consumers identify the wines they Bureau (TTB) in the Department of the AGENCY: Alcohol and Tobacco Tax and purchase. Establishment of a viticultural Treasury and the Bureau of Alcohol, Trade Bureau (TTB), Treasury. area is neither an approval nor Tobacco, Firearms, and Explosives in ACTION: Treasury decision, final rule. endorsement of the wine produced the Department of Justice. The there. regulation and taxation of alcohol SUMMARY: This Treasury decision beverages remains a function of the establishes the ‘‘Seneca Lake’’ What Is Required To Establish a Department of the Treasury and is the viticultural area located in upstate New Viticultural Area? responsibility of TTB. References to the York. The Seneca Lake viticultural area Section 4.25a(e)(2) outlines the former ATF and the new TTB in this encompasses about 204,600 acres of procedure for proposing an American document reflect the time frame, before land surrounding Seneca Lake within viticultural area. Any interested person or after January 24, 2003. the established viticultural may petition TTB to establish a grape- Seneca Lake Petition area. We take this action under the growing region as a viticultural area. authority of the Federal Alcohol The petition must include: ATF received a petition from Ms. Administration Act and our wine • Evidence that the proposed Beverly Stamp of Lakewood Vineyards labeling and advertising regulations. viticultural area is locally and/or in Watkins Glen, , proposing EFFECTIVE DATE: This final rule is nationally known by the name specified to establish the ‘‘Seneca Lake’’ effective on September 2, 2003. in the petition; viticultural area. The petitioned area FOR FURTHER INFORMATION CONTACT: • Historical or current evidence that included portions of Schuyler, Yates, Kristy Colo´n, Regulations and the boundaries of the proposed Ontario, and Seneca counties in upstate Procedures Division, Alcohol and viticultural area are as specified in the New York and covers approximately Tobacco Tax and Trade Bureau, 650 petition; 204,600 acres of primarily rural Massachusetts Avenue, NW., • Evidence that the proposed area’s agricultural and forestland. Of that total, Washington, DC 20226; (202) 927–8210. growing conditions, such as climate, 3,756 acres are planted to grapes. There are currently 33 wineries on or near SUPPLEMENTARY INFORMATION: soils, elevation, physical features, etc., distinguish it from surrounding areas; Seneca Lake, one of New York’s eleven Background on Viticultural Areas • A description of the proposed Finger Lakes. The viticultural area lies to the east of the What Is Treasury’s and TTB’s Authority viticultural area’s specific boundaries, area, and both are entirely within the To Establish a Viticultural Area? based on features found on Geological Survey (USGS)- established Finger Lakes viticultural The Federal Alcohol Administration approved maps; and area. Act (FAA Act) at 27 U.S.C. 205(e) • A copy of the appropriate USGS- Notice of Proposed Rulemaking requires that alcohol beverage labels approved map(s) with the boundaries provide the consumer with adequate prominently marked. ATF published a notice of proposed information regarding a product’s rulemaking regarding the Seneca Lake identity and prohibits the use of Impact on Current Wine Labels viticultural area in the October 21, 2002, deceptive information on such labels. With the establishment of this Federal Register as Notice No. 957 (67 The FAA Act also authorizes the viticultural area, bottlers who use brand FR 64575). In that notice, ATF requested Secretary of the Treasury to issue names like Seneca Lake may be affected. comments by December 21, 2002, from

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all interested persons concerning the In addition, Seneca Lake is mentioned on the vines retard bud-break until the establishment of this viticultural area. in ‘‘The Oxford Companion to the danger of frost has passed. In summer the ATF received one comment regarding Wines of North America.’’ The book lake warms up. By autumn/fall, the westerly winds are warmed as they blow across the Notice No. 957 from Representative states that Seneca Lake is surrounded by lake. The warm breezes on the vines lengthen Amo Houghton of New York’s 31st more than two-dozen wineries, is one of the growing season (balancing the late start Congressional District. Representative the two largest Finger Lakes, and is the to the growing season) by delaying the first Houghton supported the establishment deepest ‘‘with the greatest heat storing frost. of the Seneca Lake viticultural area and capacity, offering the surrounding The petitioner also provided an commented, ‘‘It is the largest, most hillsides the strongest mesoclimatic extract from Richard Figiel’s book diverse community of wine producers benefit.’’ While the lake’s first winery ‘‘Culture in a Glass,’’ that describes how in the Eastern United States. The was built in 1866, the book notes that the lake effect phenomenon affects the twenty-one wineries along the shores of the emergence of vinifera varieties Finger Lakes region. Noting that both Seneca Lake offer individual and unique resulted in an increase of winery Seneca and Cayuga Lakes drop well expressions from one of America’s finest openings in the 1980’s that brought new below sea level, Figiel states that since wine districts * * *. Carved by glaciers, momentum to the region’s grape- the lakes are ‘‘(n)arrow slices of water and surrounded by vineyards since the growing industry. with relatively little surface area, they mid 1800’s—a Seneca Lake viticultural What Boundary Evidence Was tend to maintain a stable temperature area has already been created through Provided? throughout the year.’’ Figiel notes that geologic and human history.’’ the depth and heat storing capacity of The boundaries of the Seneca Lake Additionally, Representative Houghton the lakes act as a large radiator for the viticultural area encompass about mentioned benefits to the viticultural surrounding area during the winter 204,600 acres of largely rural land area’s establishment. ‘‘This unique months. ‘‘Not only do the lakes take the surrounding Seneca Lake, the largest of area’s recognition by the ATF would edge off frigid upstate winters, often upstate New York’s eleven Finger Lakes. perfectly complement an existing keeping vineyards 10–15° warmer than While some of the road names used in regional framework of tourism, research locations just a half mile away,’’ the the boundary description do not appear and economic development, and book adds, ‘‘but they also cushion the on the submitted USGS maps, the promotion of the Seneca Lake identity transitions of spring and fall.’’ Figiel petitioner provided the locally known and all that it represents. This would be also points out that the ‘‘(d)istinct names of these roads, as well as a more of great benefit to consumers who seek microclimates along the hillsides rising detailed map of the town of Watkins products that allow them [to] capture, in from the lakeshores make it possible to Glen indicating minor roads. a bottle, the essence of places and reliably ripen grapes in a region that is regions that enthrall them.’’ Using roads and streams, the petitioner drew the Seneca Lake generally too cold for viticulture What Evidence Was Provided To Show viticultural area’s boundaries to contain ***.’’ The petitioner stated that it is the size the Name ‘‘Seneca Lake’’ Is Locally or the vineyards influenced by the lake’s and depth of Seneca Lake that gives the Nationally Known? climatic effect. In addition, the lake its ability to influence the local petitioner noted that distinct ridges According to the petitioner, Seneca climate. Additionally, a report provided divide Seneca Lake from its closest Lake was named after the by the petitioner, entitled ‘‘Viticultural neighbor, Cayuga Lake, and the nearly of the Nation who lived along Distinction of Seneca Lake in the New 800-foot elevation change within the 7.5 its shores hundreds of years ago. Many York Finger Lakes’’, includes a physical miles between them gives the two lakes local places and geographic features are description of Seneca Lake. The report their own microclimates. named after the Seneca people. These states that, ‘‘Seneca Lake is the largest include, for example, Seneca Lake, What Evidence Relating to Growing of the Finger Lakes covering 67.7 square Seneca County, the , Conditions Was Provided? miles. The lake is 35.1 miles long and Seneca Castle, Seneca Army Depot, and The ‘‘lake effect’’ weather is an average of 1.9 miles wide with a . Additionally, phenomenon makes the Seneca Lake shoreline of 75.4 miles. It has a volume the organization known as the Seneca viticultural area a ‘‘unique and superb’’ of 4.2 trillion gallons with a maximum Lake Winery Association includes many wine-growing region, according to the depth of 634 feet. At 150 feet, the water of the area’s wineries. ° ° petitioner. The ‘‘Oxford Companion to temperature remains at 39 F (4 C) year To demonstrate that the area is locally Wine’’, published by the Oxford around. Above that level, the water and nationally known as ‘‘Seneca Lake,’’ University Press, Inc., New York, temperature varies seasonally, but the the petitioner included several describes lake effect as ‘‘the year-round surface temperature generally does not ° ° newspaper and magazine articles as influence on vineyards from nearby go below 39.5 F (4 C).’’ While Seneca evidence of the name’s use. In an article large lakes which permits vine-growing Lake chills down, the petition adds, it from the Rochester, New York Democrat in the northeast United States and rarely freezes during the winter months. and Chronicle newspaper of November Ontario in Canada despite their high The petition also noted that the Seneca 15, 1999, entitled ‘‘Your Land, Our latitude.’’ region has the longest frost-free period Land: Finger Lakes in the Fast Lane,’’ The ‘‘Oxford Companion’’ also notes in the Finger Lakes, with a growing Ray Spencer, vice president of that the lake effect influence on grape season of about 190 days. In contrast, operations of Glenora Wine Cellars, vines changes with the seasons. It states neighboring Cayuga Lake’s growing stated that many ‘‘already refer to that: season is only 165 to 170 days long. Seneca Lake as ‘the Napa Valley of the Seneca Lake’s latent heat storage East.’’’ In the February 1997 issue of In the winter, the large lakes provide capacity alters the local climate to such moisture to the prevailing westerly winds, Wines & Vines, a California based which creates a deep snow cover, protecting an extent, the petition stated, that grapes magazine, author Philip Hiaring vines from winter freeze even in very low can be grown in an area where they described his visit to the Seneca Lake temperatures. * * * In spring, the westerly otherwise would not survive the cold region and his interviews with winery winds blow across the frozen lake and temperatures of early spring, or the late owners and winemakers. become cooler. These cooler breezes blowing autumn frosts. Together with the good

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air drainage offered by the slopes List of Subjects in 27 CFR Part 9 (1) Beginning in the town of Watkins leading to its shore, the lake’s water Administrative practice and Glen at the State Route 414 bridge over temperature provides cool breezes in the procedure, Alcohol and alcoholic the New York State Barge Canal, follow spring, preventing early bud break in beverages, Consumer protection, and the Canal south approximately 0.2 miles the fruit. In the fall, the lake’s warmth Wine. to the mouth of Glen Creek, on the delays early frosts, and in the winter it Burdette, N.Y. map; raises temperatures so that bud damage Authority and Issuance (2) Follow Glen Creek upstream is lessened. ■ For the reasons discussed in the (west), crossing onto the Montour Falls, According to the petitioner, it is this preamble, title 27, Code of Federal N.Y. map and continuing to the road ability to protect a crop from extreme Regulations, Part 9, American locally known as the Van Zandt Hollow temperatures during both the growing Viticultural Areas, is amended as Road on the Beaver Dams, N.Y. map; (3) Proceed north on Van Zandt and dormant seasons that distinguishes follows; the Seneca Lake viticultural area from Hollow Road to Cross Road; the surrounding areas. This lake effect is PART 9—AMERICAN VITICULTURAL (4) Continue north on Cross Road, strongest within about one-half mile of AREAS which changes to Cretsley Road, to its Seneca Lake. For this reason, the more intersection with Mud Lake Road ■ 1. The authority citation for part 9 tender vinifera varieties are planted (County Road 23) on the Reading continues to read as follows: within this zone, while hardier Center, N.Y. map; (5) Proceed west approximately 0.7 American varieties and hybrids can be Authority: 27 U.S.C. 205. miles on County Road 23 to its planted higher on the slopes. The intersection with Pre-emption Road; petitioner added that smaller lakes, even Subpart C—Approved American (6) Then continue north on Pre- those the size of Cayuga Lake, do not Viticultural Areas emption Road along the Dundee, N.Y., have the same level of latent heat ■ 2. Subpart C is amended by adding Penn Yan, N.Y. and Dresden, N.Y. capacity and, therefore, do not modify § 9.128 to read as follows: maps, for approximately 18 miles to its the local climate to the same extent as junction with an unnamed light duty Seneca Lake. § 9.128 Seneca Lake (a) Name. The name of the viticultural road just east of Outlet on Regulatory Analyses and Notices area described in this section is ‘‘Seneca the Penn Yan, N.Y. map; (7) Follow the unnamed light duty Lake’’. Is This a Significant Regulatory Action road across the Keuka Outlet, traveling as Defined by Executive Order 12866? (b) Approved Maps. The appropriate maps for determining the boundary of approximately 0.3 miles to its junction TTB has determined that this the Seneca Lake viticultural area are 13 in Seneca Mills with an unnamed light regulation is not a significant regulatory United States Geological Survey (USGS) duty road, known locally as Outlet action as defined in Executive Order topographic maps (Scale: 1:24,000). The Road; (8) Follow Outlet Road west along the 12866. Accordingly, this proposal is not maps are titled: subject to the analysis required by this (1) Burdett Quadrangle (New York— north bank of the Keuka Outlet Executive Order. Schuyler Co. 1950 (photoinspected approximately 0.6 miles, until the road 1976)); forks; How Does the Regulatory Flexibility Act (9) At the fork, continue north Apply to This Final Rule? (2) Montour Falls Quadrangle (New York 1978 (photorevised 1976)); approximately 1 mile, on an unnamed TTB certifies that the regulations will (3) Beaver Dams Quadrangle (New light duty road know locally as Stiles not have a significant economic impact York 1953); Road, to its junction with Pre-emption on a substantial number of small (4) Reading Center Quadrangle (New Road. (10) Then proceed north 14.6 miles on entities. This regulation imposes no new York 1950 (photorevised 1978)); Pre-emption Road across the Stanley, reporting, recordkeeping, or other (5) Dundee Quadrangle (New York N.Y. map, to an unnamed medium duty administrative requirement. Any benefit 1942 (photoinspected 1976)); road, known locally as County Road 4, derived from the use of a viticultural (6) Dresden Quadrangle (New York on the Phelps, N.Y. map; area name is the result of a proprietor’s 1943 (photorevised 1978)); (7) Penn Yan Quadrangle (New (11) Continue west approximately 4.5 own efforts and consumer acceptance of miles on County Road 4 to its wines from that area. Therefore, no York—Yates Co. 1942 (photoinspected 1976)); intersection with Orleans Road in regulatory flexibility analysis is Seneca Castle; required. (8) Stanley Quadrangle (New York 1952); (12) Then proceed north on Orleans Does the Paperwork Reduction Act (9) Phelps Quadrangle (New York— Road, which becomes Seneca Castle Apply to This Final Rule? Ontario Co. 1953); Road, for 2.1 miles, to Warner Corners (10) Geneva North Quadrangle (New where the name of the road changes to The Paperwork Reduction Act of York 1953 (photorevised 1976)); Wheat Road; 1995, 44 U.S.C. chapter 35, and its (11) Geneva South Quadrangle (New (13) Continue north from Warner implementing regulations, 5 CFR part York 1953 (photorevised 1978)); Corners on Wheat Road approximately 1320, do not apply to this final rule (12) Ovid Quadrangle (New York— 1.9 miles to its intersection with State because there are no new or revised Seneca Co. 1970); and Route 88; record keeping or reporting (13) Lodi Quadrangle (New York (14) Continue north on State Route 88 requirements. 1942). approximately 1.4 miles, to its Drafting Information (c) Boundaries. The Seneca Lake intersection with State Route 96 at viticultural area surrounds Seneca Lake Knickerbocker Corner; The principal author of this document in upstate New York and is located in (15) Continue east on State Route 96 is Kristy Colo´n, Regulations and portions of Schuyler, Yates, Ontario, approximately 10.4 miles, to the Procedures Division, Alcohol and and Seneca counties. The boundaries intersection with Brewer Road on the Tobacco Tax and Trade Bureau. are as follows: Geneva North, N.Y. map;

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(16) Follow Brewer Road south NATIONAL LABOR RELATIONS whose charge has been dismissed, the approximately 1.8 miles to the BOARD Office of Appeals has maintained a intersection with U.S. Route 20/State policy that reflects a liberal exercise of Route 5; 29 CFR Part 102 discretion in order to afford appeal (17) At the intersection of Brewer rights to the broadest population. Revisions of Regulations Concerning Although an appeal is more effective if Road and U.S. Route 20/State Route 5, Procedures for Filing Appeals to continue south approximately 0.1 miles, the party seeking review explains the Regional Directors’ Refusal To Issue, basis for the disagreement with the following an imaginary line to the south or Reissue, Complaint bank of the Seneca River; Region’s disposition, failure to include AGENCY: National Labor Relations such a statement has not been (18) Follow the south bank of the considered by the Office of Appeals a Seneca River east approximately 0.1 Board. ACTION: Final rule. basis for rejecting an otherwise timely miles to the mouth of the Kendig Creek; filed appeal. In Grand Rapids Gravel (19) Continue south following the SUMMARY: The General Counsel of the Company, JD–114–02 (issued November Kendig Creek approximately 3.3 miles National Labor Relations Board is 22, 2002),1 an administrative law judge to the Creek’s intersection with Yellow amending regulations concerning the specifically rejected the assumption Tavern Road on the Geneva South, N.Y. procedures for filing an appeal to the ‘‘that the filing of a notice of appeal is map; General Counsel from a Regional legally tantamount to the filing of the (20) Follow Yellow Tavern Road west Director’s dismissal of an unfair labor actual appeal.’’ Skip op. p.20. In order approximately 0.1 miles, to its practice charge. The revisions, which to avoid future challenges concerning intersection with Post Road; reflect the actual practice under existing the viability of an appeal based only on regulations, relieve persons seeking (21) Follow Post Road south a notice, the rules and regulations and review from being required to file a related forms are being revised to reflect approximately 1.4 miles to its junction complete and separate statement apart with State Route 96A; the actual practice. Because of the from the Appeal Form (Form 4767) to obvious utility of such a statement, the (22) Then follow State Route 96A perfect an appeal before the Office of General Counsel believes most charging south 17.5 miles across the Dresden, Appeals. parties will continue to submit them, N.Y., Ovid, N.Y., and Lodi, N.Y. maps DATES: Effective July 3, 2003. even if it is not mandatory. Once a case to the village of Lodi; FOR FURTHER INFORMATION CONTACT: is appealed, the same level of review is (23) In Lodi, continue south where Lester A. Heltzer, Executive Secretary, afforded despite the brevity of an State Route 96A changes to S. Main 202–273–1067. appeal. Because the current practice is Street and then changes to an unnamed SUPPLEMENTARY INFORMATION: Section fairer to individual, unrepresented medium duty road (known locally as 102.19(a) of the National Labor charging parties, the language Center Road-Country Road 137); Relations Board’s rules provides that if applicable to the procedures of filing an (24) Continue south on Center Road- a Regional Director declines to issue appeal has been revised to reflect that Country Road 137 for approximately 4.9 complaint, or after withdrawing a practice and to make the public aware miles to the Seneca/Schuyler County complaint refuses to reissue it, the of the actual practice. Line; person making the charge may obtain For these reasons, the General (25) Then proceed west 0.5 miles on review of the action by filing an appeal Counsel is eliminating the requirement the county line to Logan Road; (or seeking an extension of time in that a complete and separate statement which to file an appeal) within 14 days must be submitted in order to constitute (26) Then proceed 8.6 miles south on of being notified in writing by the an appeal from the Regional Director’s Logan Road to State Route 227 Regional Director of the reasons for the refusal to issue, or reissue, a compliant. (identified by the petitioner as State decision. Significantly, Section Route 79) on the Burdette, N.Y. map; Administrative Procedure Act 102.19(a) instructed that the appeal (27) Then proceed approximately 800 ‘‘shall’’ contain a complete statement Because the change involves rules of feet east on Route 227 to Skyline Drive; setting forth the facts and reasons upon agency organization, procedure or (28) Then proceed south on Skyline which it is based. practice, the Agency is not required to Drive for 2.5 miles to an unnamed Despite the seemingly mandatory publish for comment under Section 553 stream; language of Section 102.19(a), the Office of the Administrative Procedure Act (29) Follow the unnamed stream west of Appeals has, for many years, (5.U.S.C. 553). accepted the ‘‘Appeal’’ form (Form approximately 0.6 miles to its Regulatory Flexibility Act intersection with State Route 414; and 4767) attached to the Regional Director’s dismissal letter as an appeal and sent Because no notice of proposed rule- (30) Continue west on State Route 414 acknowledgement to the parties based approximately 0.5 miles to the making is required for procedural rules, on a timely filing of such form. The the requirements of the Regulatory beginning point on the bridge over the policy was developed in response to the New York State Barge Canal. Flexibility Act (5 U.S.C. 601 et seq.) reality that many individual appellants pertaining to regulatory flexibility Dated: May 14, 2003. to not have the language skills to perfect analysis do to apply to these rules. Arthur J. Libertucci, a more traditional appeal. Quite often, However, even if the Regulatory Administrator. individuals without benefit of counsel Flexibility Act were to apply, the NLRB have merely sent the form as indicative Approved: June 4, 2003. certifies that these changes will not have of an intent to appeal. These individuals a significant economic impact on small Timothy E. Skud, apparently believe that they have business entities since the changes Deputy Assistant Secretary (Tax, Trade, and perfected an appeal by sending in the Tariff Policy). form officially attached to the Region’s 1 Cases No. 7–CA–44094 and 7–CA–44211. The [FR Doc. 03–16703 Filed 7–2–03; 8:45 am] dismissal letter. Since seeking review is Board adopted the decision on February 27, 2003, BILLING CODE 4810–31–P the last recourse for a charging party without exceptions being filed.

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