The Malibu-Newton Canyon Viticultural Area (95R-014P)

DEPARTMENT OF THE TREASURY

Bureau of Alcohol, Tobacco and Firearms

27 CFR Part 9

RIN 1512-AA07

[Notice No. 817]

The Malibu-Newton Canyon Viticultural Area (95R-014P)

AGENCY: Bureau of Alcohol, Tobacco and Firearms, Department of the

Treasury.

ACTION: Notice of proposed rulemaking.

-----------------------------------------------------------------------

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

a petition proposing the establishment of a viticultural area in the

State of California to be known as ``Malibu-Newton Canyon.'' This

proposal is the result of a petition submitted by Mr. George Rosenthal,

President of Rancho Escondido, Inc.

ATF believes that the establishment 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.

DATES: Written comments must be received by February 20, 1996.

ADDRESSES: Send written comments to: Chief, Wine, Beer and Spirits

Regulations Branch, Bureau of Alcohol, Tobacco and Firearms, P.O. Box

50221, Washington, DC 20091-0221 (Attn: Notice No. 817). Copies of the

petition, the proposed regulations, the appropriate maps, and any

written comments received will be available for public inspection

during normal business hours at: ATF Reading Room, Office of Public

Affairs and Disclosure, Room 6480, 650 Massachusetts Avenue, NW,

Washington, DC.

FOR FURTHER INFORMATION CONTACT: David Brokaw, Wine, Beer and Spirits

Regulations Branch, 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 definitive viticultural areas. The

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

as an appellation of origin on wine labels and in wine advertisements.

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

56692) which added a new Part 9 to 27 CFR, 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 may petition ATF to

establish a grape-

[[Page 66536]]

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 the 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 Mr. George Rosenthal, President of

Rancho Escondido, Inc., proposing to establish a new viticultural

appellation in the Malibu area of Los Angeles County, California, to be

known as ``Malibu-Newton Canyon.'' The viticultural area, comprising

approximately 850 acres, is located within Newton Canyon which is a

bowl shaped valley located on the south facing side of the Santa Monica

Mountains. Vineyards currently within the proposed viticultural area

are located on the Rancho Escondido Estate. Rancho Escondido is

comprised of approximately 157 acres, all of which lies within the

proposed ``Malibu-Newton Canyon'' viticultural area. Approximately, 14

of these acres are planted with premium wine producing vineyards.

Varietals include Cabernet Savignon, Merlot, Cabernet Franc, Chardonnay

and Petite Verdot. Currently, there are no wineries located within the

proposed ``Malibu-Newton Canyon'' area. The petition provides the

following information as evidence that the proposed area meets the

regulatory requirements discussed previously.

Evidence That the Name of the Area Is Locally or Nationally Known

According to the petitioner, the origin of the name Malibu comes

from the ancient Chumash Indian word MALA I BOO, meaning ``Place on the

Cliff,'' and was the name of an Indian village just beyond Malibu

Beach. After the Spaniards took control of southern California, the

encompassing Chumash ranchera UMALIBO became known as the Malibu

Rancho. A Spanish settler, Jose Bartolome Tapia gained control of the

rancho and was later granted the land by the Governor of the

Californias. The present day spelling appears on the name of the

Topanga Malibu Sequit grant dated July 12, 1805. It originally totalled

13,315 acres, one of the largest southern California Ranchos at that

time.

The petitioner further states that throughout the 19th century,

Rancho Malibu changed hands many times but remained intact. Until the

construction of the Pacific Coast Highway in the 1930's, the privacy of

Rancho Malibu had not been invaded. With the burgeoning economy of

southern California, conditions greatly changed. This historic rancho

was finally subdivided during the same decade. Following soon after,

the famous Malibu Beach Colony was established where movie stars and

industry moguls began constructing their homes. The Malibu area then

quickly developed into the highly recognized community of Los Angeles

as it is known today.

Throughout this region there exists topography in the form of

roads, a creek, a lake, a canyon, a beach, hiking trails, parks,

vistas, etc. which denote the name ``Malibu.'' The region lying roughly

from the ridge line of the Santa Monica Mountains to the ocean, and

from Topanga Canyon to the Ventura County line is commonly known as

Malibu, according to the petitioner. While the city of Malibu was

incorporated in 1992, the entire surrounding area described above

continues to be recognized as Malibu. ``Malibu'' could be applied to

any of the hills/mountains which drain toward the ocean through the

city of Malibu, including Newton Canyon, the location of the proposed

viticultural area.

The petitioner provided a 1:250,000 scale Topopgraphic-Bathymetric

map of Los Angeles to document the use of the name, ``Malibu.'' An

article in the October 15, 1994, issue of the ``Wine Spectator,''

entitled ``A Vineyard Grows in Malibu Canyon,'' refers to the area

around ``The Malibu Estate'' (Rancho Escondido, Inc.) as ``Malibu

Hills.'' Also, included as an exhibit was a copy of an article from,

``The Underground Wine Journal,'' 1994, entitled, ``Distinctive New

Wines.'' This article refers to ``The Malibu Estate'' as being located

``in the hills above Malibu.''

According to the petitioner, the name ``Newton Canyon'' is

generally known as describing the specific area in which the proposed

viticultural area is located. This is evidenced by the name of the main

street running through the proposed viticultural area--``Newton Canyon

Road.'' In addition, maps of the area, including the U.S.G.S. map

referenced and shown within the petition, label the area as, ``Newton

Canyon.'' The petitioner states that, ``'Newton Canyon alone is not

descriptive enough to describe the general location of the proposed

viticultural area, and further, might possibly cause public confusion

in relation to Newton Vineyards, located in the Napa Valley.''

Therefore, the petitioner proposed the name, ``Malibu-Newton Canyon.''

Historical or Current Evidence That the Boundaries of the Proposed

Viticultural Area Are as Specified in the Petition

The boundaries of the proposed ``Malibu-Newton Canyon''

viticultural area follow the natural ridge lines which define Newton

Canyon and are delineated on the U.S.G.S. Point Dume, California,

quadrangle map.

Newton Canyon is a bowl shaped valley located on the south facing

side of the Santa Monica Mountains, in the Malibu area of Los Angeles

County. The canyon is oriented along an east-west axis. The valley

floor lies at an elevation of approximately 1,400 feet. The surrounding

ridgeline ranges in elevation from 1,800-2,100 feet on the southern

ocean side of the canyon, continuing to 2,100-2,800 feet on the high

side of the canyon to the north.

According to the petitioner, the elevation of the southern rim of

the canyon is low enough to allow evening fog to sift into the valley,

but high enough to keep out the marine layer that shrouds much of the

coastline throughout the daytime. The northern rim of the canyon joins

the crest of the Santa Monica Mountains that divides oceanside from

leeside. Lying at the eastern most side of the canyon, Castro Peak is

another distinguishing feature which marks one of the highest points in

the Santa Monica Mountains at 2,824 feet.

The petitioner further states that approximately two-thirds of the

surrounding Malibu area contains slopes greater than 25 percent, with

only one-fifth having relatively level terrain. Throughout the past

several decades, most of the usable land in the Malibu area has been

developed. Because of increasingly high land prices, very little of the

land in the general Malibu area is still used for agriculture. The

Santa Monica Mountains also have thousands of acres dedicated to State

and national parks, with more acreage being aggressively acquired by

public conservation agencies.

[[Page 66537]]

Evidence Relating to the Geographical Features (Climate, Soil,

Elevation, Physical Features, etc.) Which Distinguish the Viticultural

Features of the Proposed Area From Surrounding Areas

Climate

Based upon a 1994 climate study completed by Fox Weather, Oxnard,

California, the petitioner asserts the following: The general climate

of the Malibu area is typical of southern California with mild rainy

winters, and warm dry summers. However, there are several

climatological factors which distinguish the proposed ``Malibu-Newton

Canyon'' viticultural area from the surrounding region.

While summer temperatures often exceed 80 degrees in the afternoon,

cooling ocean breezes flow into the valley in the evening, according to

the petitioner. Moreover, during the evening and early morning a light

fog often filters into the valley and settles along the slopes,

creating a unique microclimate which is significantly cooler than the

surrounding inland areas. Typically, the morning sun shines through the

fog, which in turn is swept out by warm winds and high daytime

temperatures. The valley enjoys southern exposure to the sun throughout

the afternoon. According to the petitioner, these conditions are ideal

for premium grape growing.

Because of its high elevation and orientation, the proposed

viticultural area does not experience the constantly overcast skies and

cooler temperatures of the coastal region immediately below.

Newton Canyon, within which the proposed viticultural area is

located, is a unique pocket protected from marine influence. The

coastline near sea level is a more temperate climate controlled by

marine stratus with uniformly cold temperatures, fog and low clouds.

This cooler and more humid coastal environment, mainly affecting areas

below the 1,300 foot level, can create grape rot and delay maturation.

The petitioner claims that the proposed ``Malibu-Newton Canyon''

viticultural area is, in the daytime, a sunny warm oasis for a coastal

location. The proposed area is located at an elevation which lies just

at the bottom of the inversion layer and just at the top of the marine

layer. Typically, the marine layer ceiling is approximately 1,400 feet

on average. The southern or bottom rim of the canyon acts as a barrier

to the marine layer, preventing the bulk of the coastal fog and low

clouds from penetrating the valley for extended periods of time. This

allows the ``Malibu-Newton Canyon'' area to enjoy favorable cooling

effects of the Pacific ocean and have the warm sunny daytime

temperatures found in the adjacent interior valleys.

Nearby inland areas experience uniformly hot summer temperatures

similar to those experienced in the upper elevations on the oceanside

of the Santa Monica Mountains. However, these inland areas receive

little or no fog and much less precipitation than the oceanside regime,

according to the petitioner.

An additional distinctive aspect is an increasing amount of

precipitation with increasing elevation. The petitioner states that

upland weather stations report practically twice the mean precipitation

of the nearby lowland stations. Furthermore, the greatest monthly

precipitation during the rainy season is from 1.5 to 3.0 times as great

as that for the lowland stations. Precipitation is concentrated in the

winter months. The average annual rainfall is about 24 inches, with

approximately 12 percent occurring from the months of April to October.

The proposed area experiences typical low temperatures in the

winter time, just above freezing temperatures. Infrequent winter

freezes have been known to occur during the dormant winter growing

cycle.

In summary, the petitioner states that the proposed viticultural

area is characterized by an isolated microclimate that captures the

favorable climatic conditions necessary for premium wine grape growing.

In contrast, the petitioner states that the surrounding areas found on

the oceanside of the Santa Monica Mountains (i.e, Malibu, Oxnard, Santa

Monica) are uniformly cool and overcast. Surrounding inland areas found

on the leeside of the Santa Monica Mountains (i.e, Thousand Oaks,

Agoura, Woodland Hills) are uniformly hot and dry. The petitioner

provided a diagram illustrating the ``Malibu-Newton Canyon''

microclimate and a November 29, 1994, ``CLIMATOLOGICAL SURVEY FOR

RANCHO ESCONDIDO VINEYARDS,'' by Alan D. Fox of Fox Weather.

Physical Features

According to the petitioner, the primary distinction of the

proposed viticultural area is its unique combination of shape,

elevation, orientation and relative location to the marine influences

of the Pacific Ocean. The proposed area lies within a clearly defined

valley with a ``bowl'' shape resting high on the oceanside of the Santa

Monica Mountains. These physical features create a pocket which harbors

the distinct microclimate described above. The petitioner provided

aerial photos to illustrate these physical features.

Drainage

All of the proposed viticultural area drains into Newton Canyon

Creek, continuing to Zuma Creek which then drains into the Pacific

Ocean at Point Dume's westward beach, according to the petitioner.

Soils

As evidence of soil types, the petitioner provided a 1994 soils

study completed by Soil & Plant Laboratory, Inc., Orange, California,

in addition to ``Soils of the Malibu Area California'' published by the

Soil Conservation Service, United States Department of Agriculture.

According to this information, major soils within the proposed

viticultural area range from loam to clay loam in texture. Subsoil

texture ranges from clay loam to clay. Current plantings are mainly on

Castaic and Rincon silty clay loams and Malibu loam which are lower

elevation terrace soils that are moderately deep, with favorable

Capability Class ratings of II to IV. Steeper hillside soils (mostly

above the 1,700 foot contour line) are shallower with Capability Class

ratings ranging from IV to VIII.

Soils in the proposed viticultural area have moderate to high

inherent fertility. Soil reaction in surface soils ranges from

moderately acid to slightly alkaline. Subsoil ph varies with type and

several areas are calcareous.

According to the petitioner, soil tests performed prior to the

planting of vineyards in 1988 revealed that the topsoil found in much

of lower Newton Canyon contained crushed rock, as a result of the

construction of the nearby Kanan Dume Road tunnel, which is ideal for

good drainage.

The surrounding areas are mainly steep hillsides and mountainous

uplands with poor soil capability. These soils are usually shallower

than those found in the proposed viticultural area, and are subject to

erosion.

Proposed Boundary

The boundary of the proposed ``Malibu-Newton Canyon'' viticultural

area may be found on one United States Geological Survey map, entitled

Point Dume Quadrangle, California, 7.5 minute series, with a scale of

1:24,000.

Public Participation--Written Comments

ATF requests comments from all interested parties. Comments

received

[[Page 66538]]

on or before the closing date will be carefully considered. Comments

received after that date will be given the same consideration if it is

practical to do so. However, assurance of consideration can only be

given to comments received on or before the closing date.

ATF will not recognize any submitted material as confidential and

comments may be disclosed to the public. Any material which a commenter

considers to be confidential or inappropriate for disclosure to the

public should not be included in the comments. The name of the person

submitting a comment is not exempt from disclosure.

Comments may be submitted by facsimile transmission to (202) 927-

8602, provided the comments: (1) are legible; (2) are 8\1/2\ x 11'' in

size, (3) contain a written signature, and (4) are 3 pages or less in

length. This limitation is necessary to assure reasonable access to the

equipment. Comments sent by FAX in excess of three pages will not be

accepted. Receipt of FAX transmittals will not be acknowledged.

Facsimile transmitted comments will be treated as originals.

During the comment period, any person who desires an opportunity to

comment orally at a public hearing on the proposed regulation should

submit his or her request, in writing, to the Director within the 60-

day comment period. However, the Director reserves the right to

determine, in light of all circumstances, whether a public hearing will

be held.

Executive Order 12866

It has been determined that this proposed regulation is not a

significant regulatory action as defined by Executive Order 12866.

Accordingly, this proposal is not subject to the analysis required by

this executive order.

Regulatory Flexibility Act

It is hereby certified that this proposed regulation will not have

a significant economic impact on a substantial number of small

entities. The establishment of a viticultural area is neither an

endorsement nor approval by ATF of the quality of wine produced in the

area, but rather an identification of an area that is distinct from

surrounding areas. ATF believes that the establishment of viticultural

areas merely allows wineries to describe more accurately the origin of

their wines to consumers, and helps consumers identify the wines they

purchase. Thus, 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 that area.

Accordingly, a regulatory flexibility analysis is not required

because the proposal, if promulgated as a final rule, is not expected

(1) to have significant secondary, or incidental effects on a

substantial number of small entities; or (2) to impose, or otherwise

cause a significant increase in the reporting, recordkeeping, or other

compliance burdens on a substantial number of small entities.

Paperwork Reduction Act

The provisions of the Paperwork Reduction Act of 1980, Pub. L. No.

96-511, 44 U.S.C. Chapter 35, and its implementing regulations, 5 CFR

Part 1320, do not apply to this notice of proposed rulemaking because

no requirement to collect information is proposed.

Drafting Information

The principal author of this document is David Brokaw, Wine, Beer

and Spirits Regulations Branch, 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 proposed to be amended as follows:

PART 9--AMERICAN VITICULTURAL AREAS

Par. 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. 9.152 to read as

follows:

* * * * *

Sec. 9.152 Malibu-Newton Canyon.

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

petition is ``Malibu-Newton Canyon.''

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

of the Malibu-Newton Canyon viticultural area is the U.S.G.S. map,

``Point Dume Quadrangle, California'' (7.5 Minute Series 1:24,000

Topographic map, photorevised 1981).

(c) Boundary. The Malibu-Newton Canyon viticultural area is located

in Los Angeles County, California. The boundary is as follows:

(1) Beginning at the intersection of the Newton Canyon creek

(lowest elevation) and an unnamed medium duty road referred to by the

petitioner as Kanan Dume Road at the boundary of section 13 and 18 on

the U.S.G.S. map ``Point Dume Quadrangle.''

(2) Then south along Kanan Dume Road to the point where an unnamed,

unimproved dirt road referred to by the petitioner as Ramerez Mountain

Way crosses over Kanan Dume Road at the tunnel in the northwest corner

of section 19.

(3) Then east along Ramerez Mountain Way, following the southern

ridgeline of Newton Canyon, to Latigo Canyon Road in the southwest

corner of section 17.

(4) Then south along Latigo Canyon Road to an unnamed, unimproved

dirt road referred to by the petitioner as Newton Mountain Way at the

southern boundary of section 17.

(5) Then northeast along Newton Mountain Way, following the

southeastern ridgeline of Newton Canyon, to an unnamed, unimproved dirt

road referred to by the petitioner as Castro Mountain Way in section

16.

(6) Then west along Castro Mountain Way, past Castro Peak,

following the northern ridgeline of Newton Canyon to Latigo Canyon Road

in section 18.

(7) Then southwest along the natural ridgeline of Newton Canyon to

the intersection of Kanan Dume Road and the 1,600 foot contour line in

the southeastern portion of section 13.

(8) Then southeasterly along Kanan Dume Road to the beginning

point.

Signed: December 11, 1995.

Daniel R. Black,

Acting Director.

[FR Doc. 95-31169 Filed 12-21-95; 8:45 am]

BILLING CODE 4810-31-P