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TTB stopped our production due to high proof

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18 hours ago, Patio29Dadio said:

One follow up point/question.   While I certainly get the significance of this proof variance in accuracy, your example above assumes an absolute difference.  In other words, you show an absolute increase in proof for the higher-accuracy density meters.  I think, unless I am missing something here, the actual result would be plus-or-minus accuracy that, over a larger sampling set, would potentially result in less average variance.  

In addition, the IRS-approved hydrometer and thermometer have accuracy variance.   For example, +- .2 proof for the hydrometer, and +-.75 C for the thermometer.  So we would need to calculate the variance for both for a valid comparison... and also include the variance for all the variables of human error and other unknown influences. 

If you review carefully the TTB glass hydrometer method and old standard practice, you will note that the accuracy, precision, and repeatability for a glass hydrometer is better than the nominal accuracy. For example, typical IRS glass hydrometer has 0.2% divisions and 0.2% "accuracy", but in fact the method for doing the readings can give you greater precision than the 0.2% divisions, because a skilled user can read to about 1/4 of a division, or 0.05%, and then you are to make multiple (at least 3) readings, and average them. Hey, that is how it used to be done. The result is that a better than 0.05% accuracy is attainable. These analog devices are highly repeatable, in fact, any variance due to repeatability is primarily due to human error, or skill of the operator. Finally, while nominally 0.2% accurate, if calibrated, they can be calibrated to the best attainable accuracy, or 0.05%. That means +-0.1 proof, within the 0.3 proof needed by the TTB and better than a DMA 1001. Okay, in practice today, most users lack the skill and patience to make this measurement that carefully. But the method is assuming you are a chemist in 1933. By the way, the key to all this is having everything fully equilibrated at one temperature, and a very accurate measure of temperature, and correction from 60F using tables.

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On 9/18/2018 at 2:25 PM, Patio29Dadio said:

If it were me as the king of the TTB, I would approve more of these less-expensive meters and just require that they are certified every year along with an annual certified lab test of each proofed product. 

Better yet is if Anton Paar or Rudolf would make a cheaper instrument that just met the requirements. They could, the difference between versions is to some degree just software. The DMA 4500 is probably overkill. But they have an inherent interest in having a large price point differential above and below the TTB requirement. One day, a vendor will do so, and everyone will do so.

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Sometimes these differences are driven by the measured tolerances of the physical measuring components as they come out of manufacturing.  While the specific part may look identical, through testing some units meet tighter tolerance ranges than others.  Instead of scrapping manufactured units, they are put to use in lower-cost devices.  I don't know that this is the case with Anton Paar, but I've seen this kind of thing done elsewhere, especially when the unit manufacturing costs are very high, and either scrapping or fixing reliability in software is not possible.

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On 9/19/2018 at 9:09 AM, Silk City Distillers said:

Sometimes these differences are driven by the measured tolerances of the physical measuring components as they come out of manufacturing.  While the specific part may look identical, through testing some units meet tighter tolerance ranges than others.  Instead of scrapping manufactured units, they are put to use in lower-cost devices.  I don't know that this is the case with Anton Paar, but I've seen this kind of thing done elsewhere, especially when the unit manufacturing costs are very high, and either scrapping or fixing reliability in software is not possible.

Most of the difference has to do with temperature control, equilibration, and correction. This is especially true for the handheld units, which have no temperature control. The quartz oscillation tube measurement itself can be done to very high accuracy even with an inexpensive handheld unit. But you have to have the temperature fixed in the device and measured accurately, as well, and then calibrate the whole thing.

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I would like to reiterate what "rtshfd" said at the beginning of this post: "...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...."

Water and alcohol do not mix easily.  The first time I bottled 50 gallons of whiskey that I thought I had properly brought down to 80 proof was a disaster.  Half way through bottling we discovered that the proof at the bottom of the container was nowhere close to the top of the container!

It now takes us about 2 days to adjust the spirit to exactly 80 proof.  A little secret:  after letting the spirit sit for a couple of hours, carefully stir it up again and fill a glass cylinder with the spirit.  If you see any TINY bubbles that means the solution was not completely mixed and your hydrometer reading will be off.  Those tiny bubble are the result of the water combining with the alcohol (which also generates a small amount of heat).

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This thread began with a subject line "TTB stopped our production due to high proof."  It dates 2016, so I’m going back a ways to discuss the issue of being told to stop.

I think the issue of gauging has been covered by many of the persons who have commented.  I’ll only add that TTB has a proposal, the new section 5.65(c),  that will provide an over proof tolerance as well as the existing under proof tolerance.    The final rule is due out in March.

Now, I’ll turn to  what I really want to talk about.  I quote the opening to this thread in full.

“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 at least 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

 Again, that statement dates to 2016, so I’m more than a bit late in commenting, but the atmospherics of TTB’s recent public statements and behaviors tells me that what I have to say is relevant today. 

 I will accept that this happened, but I can't imagine that the agency would have backed up the employee out of whose mouth it spewed. Or can I?  

No agent has the authority to tell you to stop operations.  Period.   They can advise you that what you are doing is in violation of the law and that any further violations - which they would then have to prove - may be considered willful, but no agent may demand, on their authority, that you stop. 

 I will underline the word "no." No government agent - go as high in the hierarchy as you might like -  has that authority to do so on their own say.  If any government agent asserts that they have that authority, ask them in a polite way, to cite the source form which the authority flows.   I'm not an attorney, so consult one if this ever happens to you, but my advice is that you ask the agent to please put the cease and desist order  in writing so that you can show it to your attorney.  If the agent has a lick of sense, that will put an end to the demand.  

Next, I never thought I would need to say this, but if such an officious (I've got to watch my choice of nouns here)  personage happens to darken the halls of your DSP, politely tell the agent that you certainly want to comply with any lawful order, but that  you want to talk to your attorney before making any further statements.  Look to John Hinman's advice at https://www.beveragelaw.com/booze-rules/investigator-5fnb4564-2754l85-7g42123fd-zfg9e-pxewb-9fajj.  He was addressing talking with TTB agents who are asking about trade practices, but when things get serious, like an instruction to shut down, I'd apply the same rules.  

Now, I'm not arguing that you  thumb your nose at a demand that you stop, because a permit may have terminated by operation of law as a result of circumstances other than the allegation that the two bottles of spirits that TTB tested were over proof.  If there is a change in proprietors, which may have been the case in the situation described, the old proprietors permit terminates at the time of the change.  Unreported changes in actual or legal control can also result in the termination of a permit.  If the permit has terminated -  which is a finding that is subject to review through an established process in which TTB is given great deference  - the provisions of law that apply to moonshining kick in.  So, I'm not advocating a "screw you" TTB approach.  But, if the permit has not terminated by operation of law, TTB may not  tell you to stop operations until they go through the formal hoops necessary to suspend or revoke  the permit.  

Again, suspension and revocation require formal action.  The provisions of the Administrative Procedure Act and part 71 of TTB's own regulations apply.  They apply because congress sought to restrict employees and agencies from acting in arbitrary ways and throwing imagined weight around.   " Formal action” - underline that too - formal action requires a formal order issued to you to show cause why your permit should not be suspended, revoked or annulled;  an opportunity for hearing before an administrative law judge; the right to appeal  the administrative law judge's decision to the Administrator of TTB, and the right to appeal the administrator's decision to federal court. Usually it  also involves an opportunity for an informal conference seeking to resolve the matter before going down the hearing rabbit hole in a waste of time and money. In any case, that is one hell of a long way from some agent having authority to say "Cease and desist" all operations because our lab says you had two bottles over proof.

 Next, the lab results on the two bottles over proof are  evidence only that  the two bottles the agent took and submitted were over proof.  No inference to more violations can be drawn.   TTB would have to look at the records for the bottling of those two bottles to say anything more.  If the record did not support the conclusion that more than two bottles were over proof, then TTB has no evidence that anything more than two bottles were over proof.  The two bottle cap also applies to collecting excise taxes on the spirits on which you did not pay tax.  They can assess for two bottles, nothing more.

If you don't have the required gauge record, the required bottling tank record, and the required proof and fill check records, TTB can cite you with recordkeeping violations, which are grounds for possible action, but they still don't have any proof of more than two bottles being over proof.  TTB has  routinely ignored such findings in the past.   If you doubt my word on that , look at TTB's failure to act on its market basket sampling program, where it repeatedly found over proof bottles and did nothing.   

Further, they may not - the difference between "may" and "can" sometimes becomes important because they can say whatever words spew out of their mouth, but  - they may not tell you to cease operations because of recordkeeping violations unless (1) they first allege that you willfully violated the law and (2) that finding then is sustained throughout the formal, hearing, appeal process which is your due.  TTB may not  simply rip a permit off the wall, put it in their pocket, and walk away, until such time as they finally get around to taking formal action, whenever that may be.  That is the effect of an oral demand of the sort you received.  And that is why you have the protection of the Administrative Procedure Act.  

 Many years ago, I was instructed by ATF’s senior management to tell a person, who was operating as a wine wholesaler without having applied for a permit, that he was “violating the law and that any further violations would be considered willful.”  Now, he had paid federal occupational taxes, which are no longer collected, and had a state license, but he didn’t know he needed a permit.  I told him I wanted to see him with his attorney.  I then  delivered the message as instructed.  He asked, “Are you telling me I must stop.”  I said, truthfully, “I do not have the authority to do that.”  His attorney said, “He is telling you to stop.”  I told the attorney, “That may be, but before you advise your client to stop, you call the manager who told me to deliver the message and have him tell you to tell your client to stop.”    After I left, he made the call, and I heard not one word more.  This I know; the miscreant  continued to sell high end French wines to restaurants who had put it on their wine list only after a promise that he could deliver a continuing supply; the permit was nevertheless approved; and I heard no more about telling people that future violations would be considered willful."

But those were saner times. 

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