Scotch Hobbyist's Blog

Introduction

John Hansell, of Malt Advocate Magazine, recently posted about a new line of Glendronach single cask whiskies. He also pointed out that none of the initial releases are coming to the U.S., but we might get something in 2010. The delay is due to the fact that the standard 700 ml bottle size in Europe cannot be imported into the United States. They have to do a special bottling at 750 ml, which is closer to the old “fifth” (1/5 of a gallon) bottles that were standard in the U.S. before we attempted to go metric in the ’70s. I asked about the whole bottle size restriction thing in the comments section, which led to the following information about this topic…

Key links from the rest of this post

To save the time of scanning through this lengthy post for links, here are some key ones:

• CFR Title 27, Section 5 metric standards of fill – This is the official regulation that stipulates the bottle sizes allowed to be imported into the United States. This is strictly a regulatory issue. There are no laws prohibiting the import of other bottle sizes like 700ml.
• Proposal to amend regulation – A proposal has been made to amend the above regulation based on consumer and marketing trends, as well as industry petitions. [Thanks to Mark from WhiskyCast for the link]
• Federal Register – Should the above proposal get published for public comment, it will show up here.
• Francis W. Foote – Director, regulations and ruling division at the TTB. This is the person I was directed to after I found out that the “owner” of the above proposal is deceased. He told me that it’s up to the TTB to decide whether to publish the proposal, and there’s nothing for the general public to do except wait and see if it gets published. Anybody want to follow up with him? Email address: Frank.Foote@ttb.gov
• The Scotch Blog – A blog post explaining the history of the 750ml (vs 700ml) bottle size regulation.

Bottle size regulation. The history.

A couple of John’s readers replied in the comments section with some great information on this topic of bottle size. Neil provided a link to a post on The Scotch Blog titled My bottle is bigger than yours. This is a great article that explains how it’s a regulation, not a law, that sets the bottling size, and proceeds to give the background on who controls this regulation (The Alcohol & Tobacco Tax & Trade Bureau, or TTB for short), and how it came to be. I won’t repeat that info…just follow the link for Kevin’s detailed explanation.

A proposal for change

Another comment reply came from Mark, who provided a link showing that the TTB is actually considering amending the regulations prescribing standards of fill for wine and spirits. Here is the Abstract for this proposed rule, which was listed in April 2009:

TTB is considering amending the regulations prescribing standards of fill for wine and distilled spirits. Although this issue was addressed previously in 1987 and 1993, TTB believes that recent trends in consumer preferences and marketing strategies, along with petitions recently received from industry members, warrants revisiting this issue. TTB is soliciting comments on whether the existing standards of fill for wine and distilled spirits containers should be retained, revised, or eliminated.

[Here is a link to the spirits-related Code of Federal Regulations citation that they’re talking about amending: CFR Title 27, Volume 1, Section 5]

This sounds very promising! Mark came back with another response, stating that he had talked to Art Resnick (Director of Public and Media Affairs at the TTB), and found out that the proposed rule is on the agenda for review, but has not been released yet. Therefore, it is not open to public comment yet.

My attempt to contact the TTB

In between Mark’s two comments, I made my own attempt to get information from the TTB. I composed the following email and sent it to the contact listed with the proposed rule:

Dear <Contact Person>,

I’m sending you this email in response to a proposed rule, RIN 1513-AB56, which I found posted on the Regulations.gov web site. According to the Abstract:

<Quote from the above abstract text>

As an active member of the online single malt scotch community, I’m very interested in this proposal, as are quite a few others I’ve spoken to about this. There are often special releases of single malt scotch whisky that fail to make it into the United States because of the requirement for a second bottling at 750ml. In the age of “100 calorie packs” of food, and “half gallon” ice cream containers that are no longer half gallon, it seems strange that we’re missing out on a lot of releases in order to protect us from being “deceived” by smaller bottles.

Specifically, I’d like to see a change to 27 CFR Chapter 1, section 5.47a, titled “Metric standards of fill (distilled spirits bottled after Dec. 31, 1979)”.

The Abstract for the rule proposal states that TTB is soliciting comments. I was wondering what form, and from what groups of people, those comments would be desired. The proposal brings up some very valid points, and I’d like to do my part to help move it along. You are listed as the Agency Contact for this proposed rule.

Thanks, Jeff

My email was rejected by the TTB exchange server for being sent to an invalid address. I followed up with the main information link at the TTB, and discovered that the contact listed for this rule had passed away back in February (at a relatively young age, too). This is unfortunate, and I feel bad for the guy’s family, but I still wanted to find out more about this regulation amendment, so I asked to be passed along to somebody who could answer my questions.

Is it is, or is it ain’t, a rule?

My email was forwarded to Francis W. Foote, Director of the Regulations and Rulings Division (Frank.Foote@ttb.gov). We had the following email exchange:

Frank:

Your below Internet inquiry was forwarded to me for response.  The proposed rule has not yet been published in the Federal Register and therefore it is not open for public comments at this time.  If and when the proposed rule is published, it will set forth the procedures for submitting comments on the proposal.

Me:

Thank-you very much for your response. You say “if” it’s published. Is there any way to find out what the publishing timeline is, and what determines whether a proposed rule makes it into that publishing schedule or gets dropped?

Frank:

There is no publishing timeline—the issue is whether it will be approved for publication, and no decision on that has been taken.  If it is so approved, it will be transmitted to the Federal Register immediately for publication, which normally occurs about three days after receipt by the Office of the Federal Register.

Ok, so the rule was proposed by somebody, and it may or may not make it through the process that results in the proposal being published to the Federal Register (when it gets to the Fed. Register, it becomes an NPRM), where we can then comment on it. I still have questions…

What can we the people do?

I realize that I’m just an irritation to this guy. I also noticed that I asked two questions in one sentence in my last reply. I’ve found this is generally a bad idea in emails, as you will often just get an answer to one of them. The question he left unanswered is the most important one to me. I decided to try asking that one again in as polite a way as possible (probably at the risk of coming across as passive-agressive, though):

Me:

Thanks again for the information. If there is anything that a regular citizen such as myself (and others interested in this issue) can do to help get a proposed rule approved for publication, I’d love to hear about it. Otherwise, I guess I’ll just keep my fingers crossed and keep an eye on the Federal Register.

[Translation: I want to know what the heck is going on with this proposal, but if you want to blow me off, I’ll leave you alone after this.]

Frank:

There is nothing that you would be able to do to push this along at this point.  I would suggest keeping an eye on the Federal Register.

[Potential Translation: I’m up to my eyeballs in tobacco tax issues from the Obama administration. I assigned this one to a dead guy…can’t you take a hint? Go champion a cause at your next HOA meeting or something.]

Where that leaves me

Well, that was kind of a bummer. I was hoping to get information about how the process works and/or how we whisky enthusiasts might be able to take action to move things along. The thing is, even if it does make it to the Federal Register, the “proposed rule” as it stands doesn’t actually propose anything specific. I’m not sure if there are actual detailed proposals for the amendment, just not included in the abstract, or if the point of the proposal is just to begin a round of discussions that may or may not lead to the drawing up of a specific amendment in the future.

Questions I still have:

• Who wrote up this initial rule proposal? Is there a “champion” for it within the TTB?
• Is there a point in time at which, if it hasn’t been published to the Federal Register, it probably never will be? If so, what’s the next step? Have the industry do another petition and start the process over?
• Who decides to take it from proposal to NPRM? Are there regular meetings to discuss the outstanding proposals? How is priority determined?
• Are there further details for this rule proposal beyond the text in the Abstract?

Anybody want to go next?

If you’ve somehow managed to get this far without falling asleep, do you have any additional information to shed light on this process? Alternatively, would anybody be interested in trying to get more information out of the TTB? I’m going to just leave it alone for a little while and check on the Federal Register (here) from time to time, rather than cross over from curious scotch hobbyist to crazy harassment guy.