Young distiller

TTB stopped our production due to high proof

18 posts in this topic

First of all, who ever put this site together, great job. Have been reading through it and it's awesome to have a forum that answers most of our questions rather than trying to call the TTB and rarely get a straight answer. 

Ok, so curious if any other small facilities have had this issue. QUICK BACKGROUND: We filed for a new permit since we wanted change owners, father to son(we've had this small distillery for 20 years). As ttb came out to do there investigation they took 2 bottles to sample. We were told both bottles were at 81 proof not 80. Although we sent samples to another TTB certified lab and they gave us a reading of 80.23.  Our inventory was only about 15 cases. Again we're a small distillery and we only bottle 6 to 12 cases at a time. Basically bottle when we need to. So end result the TTB investigator told us to stop all operations until the new permit is complete which will take another 2 months atleast because we were over proof and that didn't match our labels of 80 proof. We have one major account we can't afford to lose. 

Has anyone other distilleries gone through something similar?  What did you do? Also, for some reason the TTB investigator didn't know the answer to this but does anyone the tolerance +/- you can be for spirits(Vodka, brandy)? is it .3 proof?

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As for TTB tolerance, You are allowed .3 across the board for any product, But that is lower, Not higher. For example say your product is 92.0 proof it can be no lower than 91.70 and absolutely no higher than 92.0.

I don't want to sound rude in any way, But after having a distillery for 20 years I'm surprised that you weren't aware of this already. 

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https://www.ttb.gov/spirits/bam/chapter1.pdf

TOLERANCES The labeled alcohol content must accurately reflect the actual alcohol content of the product. Losses occurring during bottling will not affect the labeled alcohol content provided the loss does not exceed:
0.25% alcohol by volume for spirits containing solids in excess of 600 mg per 100 ml
0.25% alcohol by volume for spirits bottled in 50 ml and 100 ml containers
0.15% alcohol by volume for all other spirits

So for most spirits if your label says 40% ABV it can be from 39.85% - 40.15% ABV.

Sorry to hear they asked you to stop operations and hope you can get back up and running quickly.

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32 minutes ago, HedgeBird said:

https://www.ttb.gov/spirits/bam/chapter1.pdf

TOLERANCES The labeled alcohol content must accurately reflect the actual alcohol content of the product. Losses occurring during bottling will not affect the labeled alcohol content provided the loss does not exceed:
0.25% alcohol by volume for spirits containing solids in excess of 600 mg per 100 ml
0.25% alcohol by volume for spirits bottled in 50 ml and 100 ml containers
0.15% alcohol by volume for all other spirits

So for most spirits if your label says 40% ABV it can be from 39.85% - 40.15% ABV.

Sorry to hear they asked you to stop operations and hope you can get back up and running quickly.

What you linked and copied applies strictly to "losses" not gains.  You mentioned that for a 40% abv spirit you can be from 39.85% to 40.15% and that's not correct.  For a 40% abv spirit you have a tolerance range between 39.85% and 40%.  Period.  You cannot have more spirit in the bottle than what is stated on the label.  You must correct the stated abv on the label (which doesn't require a new cola) or properly proof your spirit to the tolerance range.  

The TTB is interested in maintaining proper tax influx.  By under-proofing your spirit you are, in effect, sending 1% abv of untaxed spirits out the door (using op as an example). The TTB recognizes that losses occur to proof through the bottling process and have given a tolerance range that accounts for that, but you must not have more liquor in that bottle than is stated on the label.  

The best way to assure you're proofing properly is to take your time.  It takes me 5-10 hydrometer readings (depending on the volume being diluted) and ample time for agitation/diffusion to make sure we are accurate.  I want the proper amount of liquor in as many bottles as possible, as does the TTB.  Don't give away spirit for free (or without taxes paid).  

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@Distiller76 I was just double checking since my dad has owned this distillery since way back when. He was under the impression it was +/- .3 and of course looking it up myself i didn't find +/- just  -.3 proof. Wanted to double check.

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4 hours ago, rtshfd said:

What you linked and copied applies strictly to "losses" not gains.  You mentioned that for a 40% abv spirit you can be from 39.85% to 40.15% and that's not correct.  For a 40% abv spirit you have a tolerance range between 39.85% and 40%.  Period.   

rtshfd - Thanks for setting me straight.  Reading it again I see the wording clearly matches with the rage you have described!

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19 hours ago, HedgeBird said:

rtshfd - Thanks for setting me straight.  Reading it again I see the wording clearly matches with the rage you have described!

lol, no rage, just trying to help others avoid a pitfall like op.  

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4 hours ago, rtshfd said:

lol, no rage, just trying to help others avoid a pitfall like op.  

range!  I meant range not rage. lol.

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Well yes, it is a large error, and it has a tax consequence.  TTB can assess taxes.

Now, just for kicks, take a look at the results of TTB's market basket sample last year.  TTB reports (https://www.ttb.gov/pdf/2015-03-08-fy2016-results.pdf) as follows:

 "The most common compliance issues we identified involved alcohol content that did not match the label and was outside regulatory tolerances, or that placed the product in a different tax class than indicated by the label."  After explaining that "distilled spirits generally allow for a loss of 0.15% alcohol by volume; however, no tolerance is allowed for an increase in alcohol by volume (27 CFR 5.37(b)),"  TTB contined, "On average, for distilled spirits, underproof products were 0.95% alcohol by volume below what was shown on the label, and over proof products were 0.58% alcohol by volume above what was shown on the label."

Averages are a very crude measure.  What was the range, the mode, the median?  TTB does not say.  But here is an amazing finding.  In 2015 they found "82 noncompliance issues in 62 different distilled spirits products."  Look at the chart in the above link.  Forty (40) - to affirm the number was not a typo - of those products were over proof.  I repeat, 40! My head calculates that at about 66%. For the record, Alcohol under - eight.  

So what did TTB do about that?  I don't know.  But it would appear that a lot of people are getting the proof wrong, when 48 out of 62 are out of tolerance (yup, about 77%).  Doubt what I'm saying.  Look at the website yourself.

I read this to say that for the most part, you guys are trying to give me, the consumer, full measure of what I am due.    That's not a bad thing.  It just has tax consequences.

 At one time, a very long time ago, the California weights and measures people would run tests of things like the fill of beer cans.  If they found one underfill, they rejected the whole shipment.  This led to some brewers routinely overfilling beer shipped to California (they gave it a different product code) and routinely paying taxes on more than they removed according to labeled fill.  Like Chicken Little, I saw it with my own eyes.  But no one declared that the sky was falling.  ATF reacted in a reasonable and understanding way.   

I don't know what California does now and it is far from clear how TTB is going to proceed when so many are giving away so much!  

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Are you allowed to go over at all?  I was under the impression you could go over up to .15 as long as you payed that extra on your tax filling. 

 

 

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By regulation, you are may not go over the stated proof on the label, which is also the proof used for making the tax determination. As TTB says in explaining the results of its market basket sampling, " Distilled spirits generally allow for a loss of 0.15% alcohol by volume; however, no tolerance is allowed for an increase in alcohol by volume (27 CFR 5.37(b)),"  The section cited is also clear and unambiguous about the requirement.  The following tolerances shall be allowed (without affecting the labeled statement of alcohol content) for losses of alcohol content occurring during bottling (I'll not restate them here)

Again, the tolerance is only for losses during bottling.  This goes back at least as far as ATF Ruling 75-32, which provided:

Held, where the minimum bottling proof for various classes and types of distilled spirits prescribed in 27 CFR 5.22 is 80 degrees of proof, the bottling proof of any spirits to be bottled at that proof must be set exactly at such proof in the bottling tank. However, where, through no fault of the proprietor, there is a subsequent loss of proof in the bottling process of not more than three-tenths of a degree of proof, the bottled product retains its eligibility to be labeled in accordance with the class and type prescribed. Conversely, any shading of the proof of any such product through deliberate acts or negligence on the part of the bottler which results in the product being less than 80 proof would render the product ineligible for its original designation and subject it to being labeled as a "Diluted Product."

Which brings us to the real question, "In practice, what is TTB's tolerance for over proof product, since the regulations have no tolerance for it at all?" 

TTB's tolerance ends at the loss of taxes due to overprooofed product, but the reality is that it will probably take no action where it cannot prove that the tax due exceeds some amount if will prescribe by orders which neither you or I will ever see.  I doubt that it would ever take action to suspend a permit - or to collect an offer in compromise in lieu of suspension - where it did not have solid evidence that you knowingly overproofed the product.  And why would you chose to do that?

That is the import of the 66% overproof figure.  What did TTB do about it?  It may have cited violations, but hunt the public records and you are not going to see offers in compromise or heaven forbid, suspensions, for such violations.  TTB seems to have a degree of tolerance for products that exceed the tolerance for overproofing that the regulations do not grant.   

Please note - Seek authoritative citations.  Even if it is a TTB agent telling you something, respectfully ask that they cite the regulation or ruling on which they are relying.  

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Proof is toleranced at +0% and -0.3%, so no YOU CAN NOT GO OVER IN PROOF. Similar for volume, % depends on volume. The concept is indeed that you will be highly accurate, but that there will be both proof and volume loss in the bottling, and therefore you can be somewhat lower in proof and volume, but not higher. And also, that ensures you never underpay in tax. That is also why the tolerance is NOT meant to the be required accuracy of your gauging equipment. You must be more accurate than the tolerance range to ensure you are not above the top of the range. That is why the TTB won't allow proofing with electronic equipment that gives even a 0.15% error, because that would give you too low an accuracy to ensure you are not outside the range (combination of possible measuring error PLUS loss while bottling).

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Im interested to know what steps are being taken in order to assure your alcohol is walking out the door within these ranges. How many times are you testing during a bottling run? If you fall under the .15% what measures do you take in order to bring it back up? How are you accounting for this on your monthly reports?

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On June 15, 2016 at 2:35 AM, TRD said:

Im interested to know what steps are being taken in order to assure your alcohol is walking out the door within these ranges. How many times are you testing during a bottling run? If you fall under the .15% what measures do you take in order to bring it back up? How are you accounting for this on your monthly reports?

Who are you asking the question of? Any of us?

My take: You measure, you use a strict set of procedures. You measure again. You hope you measured enough that it is representative, so that if the TTB randomly samples, you wont be out of range. We measure the whole batch before bottling, make sure we are not below the upper limit, but as close to it as possible. We bottle. We sample some bottles afterwards, to check to see they are in range. With normal bottling practice, assuming the product used to bottle was very close to the actual proof, the bottled amount should be only a very small amount below (from evaporation mostly, plus other errors).

OK, generally, we don't end up below the -0.3% lower limit for proof (where did you get 0.15% from?). If you did, yes, you would have to add higher proof spirit to adjust, or you would have to relabel, or you would break the law. Pick one. Volume is not a problem nominally, you can correct up or down. Problem arises more often because of volume variation due to either errors in filler (volume control) or bottle volume (level control). So either get a great volume controlled filler or use a good level control filler and spend the money for better quality controlled bottles.

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Watch the TTB proofing videos online.....that will answer a lot of questions, but then go out and buy a Snap 50 from Anton Par. You cannot rely solely on your eyesight to read a meniscus. Unfortunately we are all getting older and your eyes are not what they once were. The TTB methods are antiquated for sure, but they are the law. The digital units, while not approved (really, you would rather rely on a bunch of 50 and 60 year old eyes?) give you a nice check of your readings and some peace of mind.

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Since bluestar comments touch on most issues, let’s take those comments “one bird at a time” and break each down:

 

1.       Required Gauges - You are required to make two different sorts of gauges when bottling. 

a.      The first is the gauge in the bottling tank.  See §19.593. 

                                                    i.     There is no tolerance.  That is what it means by “the gauge must be made at labeling proof.”

 

                                                   ii.     If the label to be applied says 80 proof, the gauge must be at 80 proof, not at 80.05 or 79.95.  That is the rule, but it is unlikely that you can gauge with that precision.  Still, cut to 80 on the nose by your reading.  That makes TTB happy.

 

                                                  iii.     You enter the details of the gauge on the bottling record – see §19.599.

 

                                                  iv.     You make this cut after all other operations, including filtration, are complete.

 

                                                   v.     Because of the precision, this is the gauge that can drive you bonkers

 

                                                  vi.     As others suggest, cut it high first in case your initial gauge was low, then add water as needed to get it to proof. 

 

                                                vii.     These calculations are not that hard.  Some people offer programs, but you can do it with a worksheet into which you have entered Excel formulas and the chart from the gauging manual.

 

b.      The second gauge is the alcohol content and fill check. See 19.356.

                                                    i.     At “representative times” during the bottling, you must test alcohol content and fill to determine if what you are bottling is within tolerance. 

                                                   ii.     Representative times is not further explained.  Bottling a few cases, then at the start.  Bottling all day, then several times.  That’s the best I can do to explain it.

                                                  iii.     The general requirement is that your procedures must ensure that the proof and fill are within tolerances. 

                                                  iv.     You must make a record of these test (See §19.600, which tells you what the record must show). 

                                                   v.     When you are out of tolerance, you must make corrections and show that in the record.

2.      Variation in Proof – This forum has beat to death the issue of proof tolerance.  I will repeat it one more time. 

a.      There is no provision for bottled proof greater than the label statement.  The label proof is used as an element of the gauge for tax determination purposes (see § Sec. 19.286 Gauging of spirits in bottles).

b.      There is provision for a loss of proof at the time of bottling.  The loss may not exceed .15% ABV, which is the equivalent of a drop of three degrees of proof.  That is where the values 3.0 and .15 arise.  They are apples and oranges and both are valid.  Do not confuse ABV with degrees of proof.  Note that in some cases, the allowed drop can be as much as 0.25% (small bottles and/or high obscuration).  See 19.356(b).  

3.      Variation in Fill - Even though the labeled volume is also an element of the tax determination gauge for spirits in bottles, the regulations allow overfills.  In fact, they demand them.  Section 19.356(a) requires that “there must be approximately the same number of overfills and underfills for each lot bottled.”  But it also imposes other limits.  The maximum variation in fill changes with bottle size.  For 750’s, it is not more than “plus or minus” 2.0%.

4.      Technique - The question could be read to ask how you go about making the gauge.  TTB has tutorials at https://ttb.gov/spirits/proofing.shtml.  They tell you how to go about checking proof and I can guarantee this – if you don’t make a reasonable attempt to follow the techniques they show, you are going to have errors.  For example, remember to temper your hydrometer and flask and wipe things down to prevent evaporation.  Temperature matters and changing temperatures make things “interesting.”  So it is nice to see the video where they read proof under laboratory conditions.  I’ve done it dipping out of the top of a tank truck in the dead of Montana winter, at 30 below with a wind chill factor of “I don’t care what it reads right now, it’s close enough, so unload this [expletive deleted] thing and we can worry about details later.”  Unless you buy tanker loads, the need for that is long past.  Try getting the spirits to a stable temperature, then gauge.

That is as complete as I can be.  I don't intend to comment on this matter again,

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Okay, one more comment, since Michelangelo posted just as I pushed "submit."  

Accuracy of Hydrometer Readings - You can read hydrometers with the precision required.  When ATF had gaugers stationed at DSP's, they were required to pull samples of the proof and fill from time to time and then take samples, which went into a sample cabinet.  From time to time another ATF employee would gauge each of the samples that had been pulled to confirm readings the gauger had made.  This was all done with calibrated instruments.  Yes, the two readings often did not agree absolutely, but it was rare to find one that was out of tolerance (after all, there had been two gauges made already).  Admittedly, my eyes were much younger then, and the fact that I'm even talking about the presence of gaugers in a DSP tells you how long ago that must have been.  Note, however, that in all instances we are dealing with two sets of eyes when making readings.  The fact that ATF did not rely on one set of eyes suggests, as Michelangelo points out, the need for internal control over errors your eyes might make when squinting to see the meniscus.,    

TTB's Position on Density Meters - TTB will not accept any readings made with density meters that it has not previously approved for use.  See https://www.ttb.gov/pdf/2014-7-21-device-approval-guidlines.pdf, which explains TTB's position and lists the meters it has approved for use in making tax determinations.  Recall that the bottling tank gauge is, in effect, a gauge for tax determination since you determine taxes based on the label proof.  So, unless the meter you buy is on TTB's list of those approved for gauges used to make tax determinations (Fact: the meters it has approved do not come cheap and I think are all bench top models), TTB is not going to accept gauges made with that instrument. The SNAP 50 is not on the list.  I therefore recommend that, unless you can afford an approved density meter, you make all gauges for tax determination with with a hydrometer and record the elements of the hydrometer gauge in the bottling tank record which I know you are all keeping as required by 19.599, right.  

Density Meters as An Internal Control - I want to emphasize, I do not mean to discourage you from using density meters.  In fact, I think it is a great idea if you have the bucks needed to buy them.  But I AGREE with Michelangelo that the density meter is a great internal control over possible errors in hydrometer readings.  I'm sure TTB would do back-flips in celebration of the fact you are using such an internal control, but only if you are using it as a control, and not as the gauge by which you determine taxes.

Gauges for other than tax determination  -In 1991, in approving meters available then, ATF made a distinction in the accuracy required of meters used for tax determination gauges and those used for other gauges.  See https://www.ttb.gov/rulings/91-2.htm for details on that. In that ruling, ATF approved the DMA 46 for other gauges, but not tax determinations.  So,ATF applied the "previously approved rule" to all gauges, not just those made to determine taxes. I see nothing that authorizes the use of the SNAP 50 to make any required gauges, i.e gauges made that require that you make a record of the elements of the gauge.  Although I think TTB would be less concerned over such other other gauges that you make using instruments like the SNAP 50, and although I suspect that TTB would not take serious issue with using a SNAP 150 for most gauges, I can't speak for them.  Nor can I say whether a TTB auditor or investigator who showed up at your door would even be aware of these issues.  But, as a bottom line, why not also make a gauge with a hydrometer and have the reassurance that your using internal controls that ensure the accuracy of the gauges you make?  

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