[Federal Register Volume 87, Number 145 (Friday, July 29, 2022)]
[Proposed Rules]
[Pages 45727-45730]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-16244]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF THE TREASURY

Alcohol and Tobacco Tax and Trade Bureau

27 CFR Part 5

[Docket No. TTB-2022-0007; Notice No. 213]
RIN 1513-AC88


Proposed Addition of American Single Malt Whisky to the Standards 
of Identity for Distilled Spirits

AGENCY: Alcohol and Tobacco Tax and Trade Bureau, Treasury.

ACTION: Notice of proposed rulemaking.

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

SUMMARY: The Alcohol and Tobacco Tax and Trade Bureau (TTB) proposes to 
amend the regulations that set forth the standards of identity for 
distilled spirits to include ``American single malt whisky'' as a type 
of whisky that is a distinctive product of the United States. This 
proposal follows petitions and comments submitted by several distillers 
and the American Single Malt Whisky Commission. TTB invites comments on 
this proposed amendment to its regulations.

DATES: Comments must be received on or before September 27, 2022.

ADDRESSES: You may electronically submit comments to TTB on this 
proposal, and view copies of this document, its supporting materials, 
and any comments TTB receives on it within Docket No. TTB-2022-0007 as 
posted at https://www.regulations.gov. A direct link to that docket is 
available on the TTB website at https://www.ttb.gov/distilled-spirits/notices-of-proposed-rulemaking under Notice No. 213. Alternatively, you 
may submit comments via postal mail to the Director, Regulations and 
Ruling Division, Alcohol and Tobacco Tax and Trade Bureau, 1310 G 
Street NW, Box 12, Washington, DC 20005. Please see the Public 
Participation section of this document for further information on the 
comments requested regarding this proposal and on the submission, 
confidentiality, and public disclosure of comments.

FOR FURTHER INFORMATION CONTACT: Christopher M. Thiemann, Regulations 
and Rulings Division, Alcohol and Tobacco Tax and Trade Bureau, 1310 G 
Street NW, Box 12, Washington, DC 20005; telephone 202-453-2265.

SUPPLEMENTARY INFORMATION:

Background on the Labeling of Distilled Spirits

TTB Authority

    The Alcohol and Tobacco Tax and Trade Bureau (TTB) administers 
regulations regarding the labeling of distilled spirits that include 
setting forth ``standards of identity.'' The authority to establish 
these standards is based on section 105(e) of the Federal Alcohol 
Administration Act (FAA Act), codified in the United States Code at 27 
U.S.C. 205(e). That section authorizes the Secretary of the Treasury 
(the Secretary) to prescribe regulations relating to the ``packaging, 
marking, branding, and labeling and size and fill'' of alcohol beverage 
containers ``as will prohibit deception of the consumer with respect to 
such products'' and ``as will provide consumers with adequate 
information as to the identity and quality of the products * * *.'' 
Section 105(e) of the FAA Act also generally requires bottlers and 
importers of alcohol beverages to obtain certificates of label approval 
(COLAs) prior to bottling or importing alcohol beverages for sale in 
interstate commerce.
    TTB administers these FAA Act provisions pursuant to section 
1111(d)

[[Page 45728]]

of the Homeland Security Act of 2002, as codified at 6 U.S.C. 531(d). 
In addition, the Secretary has delegated certain administrative and 
enforcement authorities to TTB through Treasury Department Order 120-
01.
    Part 5 of title 27 of the Code of Federal Regulations (27 CFR part 
5) sets forth the regulations implementing those provisions of section 
105(e) of the FAA Act as they pertain to distilled spirits.

Classes and Types of Spirits

    Subpart I of part 5 of the TTB regulations (27 CFR part 5) 
establishes standards of identity for distilled spirits products and 
categorizes these products according to various classes and types. As 
used in Sec.  5.141, the term ``class'' refers to a general category of 
spirits. Currently, there are 12 different classes of distilled spirits 
set out in Sec. Sec.  5.142-5.156, such as whisky, rum, gin, and 
brandy. As used in Sec.  5.141, the term ``type'' refers to a 
subcategory within a class of spirits. For example, ``Cognac'' and 
``fruit brandy'' are types of brandy, and ``Cacha[ccedil]a'' is a type 
of rum.
    The TTB labeling regulations at 27 CFR 5.63(a)(2) require that the 
class and type of distilled spirits appear on the product's label. 
These regulations provide that the class and type must be stated in 
conformity with Part 5, Subpart I of the TTB regulations.

Classification of Malt Whisky

    Section 5.143(a) sets forth the standard of identity for whisky as 
follows:

    (a) The class whisky. ``Whisky'' or ``whiskey'' is distilled 
spirits that is an alcoholic distillate from a fermented mash of any 
grain distilled at less than 95 percent alcohol by volume (190[deg] 
proof) having the taste, aroma, and characteristics generally 
attributed to whisky, stored in oak barrels (except that corn whisky 
need not be so stored), and bottled at not less than 40 percent 
alcohol by volume (80[deg] proof), and also includes mixtures of 
such distillates for which no specific standards of identity are 
prescribed.

    In Sec.  5.143, paragraphs (c)(1) through (18) categorize the 
specific types of whisky, such as Bourbon whisky, spirit whisky, and 
Scotch whisky. Currently, ``malt whisky'' is found in paragraph (c)(2) 
and is described as whisky produced at not more than 160[deg] proof 
from a fermented mash of not less than 51 percent malted barley and 
stored at not more than 125[deg] proof in charred new oak barrels. Such 
whisky stored in charred new oak barrels for a period of 2 years or 
more may optionally be further designated as ``straight.'' See 27 CFR 
5.143(c)(5). Paragraph (c)(7) sets forth the standard for whisky 
distilled from malt mash, which is whisky produced in the United States 
at not exceeding 160[deg] proof from a fermented mash of not less than 
51 percent malted barley and stored in used oak barrels. As a result, 
the labeling regulations provide standards for identifying whisky as 
``malt whisky'' and ``whisky distilled from malt mash'' but do not 
further specify standards for ``single malt whisky.''
    Section 5.154(a)(3) provides that geographical names that are not 
names for distinctive types of distilled spirits, and that have not 
become generic, may not be used unless the product is produced in the 
particular place or region indicated in the name. Accordingly, a 
product designated as ``American whisky'' (or ``American single malt 
whisky'') must have been produced in the United States.

American Single Malt Whisky Petitions and Comments

Petitions

    In October 2017, TTB received three petitions with similar content 
from XO Alambic, R[eacute]my Cointreau, and Westland Distillery. Each 
of these petitioners noted that they were filing the petition on behalf 
of, or with, the American Single Malt Whiskey Commission (ASMWC), an 
association of at least seventy-five producers of whisky in the United 
States.
    In their petitions, the distillers requested the establishment of a 
standard of identity to define the ``American single malt whisky'' 
category for producers and consumers alike. They noted that the 
American whisky category has been growing over the past decade and 
continues to expand, and that recognition of American single malt 
whisky is at an all-time high, with U.S. distillers winning 
international competitions with products in these categories. They 
stated that establishment of a standard of identity would benefit 
consumers, as it would provide a definition for the product, establish 
trust in the category, clarify label declarations, and equip consumers 
with the necessary information to make informed decisions so they can 
have confidence in the products they are choosing to buy in a similar 
way that Scotch whisky standards provide such information to American 
consumer. They also believe establishment of a standard of identity 
would strengthen the U.S. economy by increasing tax revenue related to 
the sale of American Single Malt Whiskey, and by creating jobs related 
to producing, distributing, and selling such a product and the 
ingredients used in this product.
    With some slight, non-substantive variations, these petitions 
requested that TTB add a standard of identity as follows:

    American Single Malt Whisky is whisky that is mashed, matured 
and distilled at a single United States distillery, is so distilled 
to a proof not exceeding 160[deg] proof from a fermented mash of 
100% malted barley, is stored in oak containers not exceeding a 
capacity of 700 liters, and is bottled at not less than 80[deg] 
proof.

    The petitioners conveyed that they believe the proposed language is 
complementary to the long-standing regulatory definitions for whiskies 
such as bourbon, but is distinctive enough to add value to the new 
designation while not inhibiting innovation among producers of American 
Single Malt Whisky.

TTB's Rulemaking on Modernizing Its Labeling Regulations

    On November 26, 2018, TTB published in the Federal Register a 
Notice of Proposed Rulemaking (Notice No. 176, 83 FR 60562) proposing 
to amend its regulations governing the labeling and advertising of 
wine, distilled spirits, and malt beverages to reorganize and recodify 
these regulations. TTB undertook this action in order to simplify and 
clarify its regulatory standards, incorporate guidance documents and 
current policy into the regulations, and reduce the regulatory burden 
on industry members where possible. In Notice No. 176, TTB sought 
comments from the public on the regulatory proposals and TTB received 
over 1,100 comments.
    TTB did not include a standard of identity for American single malt 
whisky in the regulatory amendments proposed in Notice No. 176. 
Regardless, TTB received over 200 comments in support of a new standard 
for American single malt whisky, including one from the ASMWC, which 
was mirrored in a number of other comments, urging TTB to add such a 
standard. The ASMWC's comment in response to Notice No. 176 proposed a 
standard slightly modified from the original petitioned-for standard. 
This new proposal would require that the distillation, mashing, and 
maturation of American Single Malt Whisky take place in the United 
States, but would require only that the distillation take place at a 
single United States distillery. The ASMWC stated in their comment that 
it has the support of more than 130 producers of single malt whisky. 
They restated their view that the proposed language is complementary to 
existing definitions

[[Page 45729]]

for bourbon whisky and whisky, but distinctive enough to add value to 
the new designation while not inhibiting innovation among producers of 
American Single Malt Whisky.
    On February 9, 2022, TTB published T.D. TTB-176, which finalized 
the updates to the regulations proposed in Notice No. 176 with regard 
to distilled spirits and malt beverages. TTB did not finalize a 
standard for American single malt whisky in that final rule because TTB 
had not yet published such a standard in a notice of proposed 
rulemaking.

TTB Regulatory Proposal

    After reviewing the petitions and comments, the regulations on the 
standards of identity in 27 CFR part 5, and TTB's database of approved 
Certificates of Label Approval (COLAs) (as discussed below), TTB has 
determined that amending the standards of identity regulations at Sec.  
5.143 to provide for a new standard of identity for American Single 
Malt Whisky merits consideration and public comment, as invited in this 
notice of proposed rulemaking.
    Therefore, this document proposes to amend the standard of identity 
in Sec.  5.143(c) by adding American Single Malt Whisky as a type of 
whisky in paragraph (15), generally incorporating the proposal in the 
comments to Notice No. 176. Of note, TTB is proposing that American 
Single Malt Whisky could be stored in any oak barrel (used, uncharred 
new, or charred new) not exceeding 700 liters, as the petitioners 
requested.

Effect on Currently Approved Labels

    If finalized, this amendment to the TTB regulations would revoke by 
operation of regulation any COLA that uses the term ``American single 
malt whisky'' as a designation for a distilled spirits product that 
does not meet the proposed standard of identity. TTB has searched its 
COLA database and does not believe that this rulemaking will affect any 
existing labels. To minimize the adverse effect on industry members who 
hold COLAs for labels that conflict with the proposed ``American single 
malt whisky'' designation and that would therefore be revoked by 
operation of regulation, however, TTB could allow for a time-limited 
use up of such labels by delaying the effective date of the rule 
establishing this designation. Additionally, TTB specifically seeks 
comments on the impact on current producers, including whether this 
rulemaking would affect any existing labels. TTB notes that distillers 
currently using the designations ``malt whisky,'' ``American malt 
whisky,'' ``whisky distilled from malt mash,'' or ``American whisky 
distilled from malt mash'' on their labels may continue to do so.

Public Participation

Comments Invited

    TTB invites comments from interested members of the public on this 
proposed rule, including on whether the proposed amendment would have 
an adverse impact on owners of U.S. trademarks and current producers of 
malt whisky. In addition, TTB specifically seeks comments on the 
following questions:
     Noting that other whisky standards do not incorporate size 
restrictions for barrels, is a 700-liter limit for oak barrels for 
aging American single malt whisky necessary or appropriate?
     What impact, if any, would this new standard of identity 
have on current producers of malt whisky?
     If TTB adopts this proposed amendment, and if any 
previously approved labels are impacted, for how long should TTB allow 
the use of previously approved labels for American single malt whisky 
that do not meet the new standard of identity before they are revoked 
by operation of regulation?
     Is it appropriate that the new standard of identity allows 
the use of used, uncharred new, and charred new oak barrels?
     Should TTB amend its regulations to allow for the 
designation ``straight'' to be used with American Single Malt Whisky?
     Should the use of coloring, flavoring, or blending 
materials be allowed in the production of American single malt whisky? 
If so, what coloring, flavoring, or blending materials are 
``customarily employed'' in the production of American single malt 
whisky, in accordance with 27 CFR 5.155? Please provide any available 
evidence of their use.
     Should TTB amend its regulations to allow for mixtures of 
American single malt whisky to be labeled as ``blended American single 
malt whisky,'' similar to how TTB regulations allow for blended Scotch 
whisky and blended Canadian whisky to be labeled, respectively, 
``blended Scotch whisky'' and ``blended Canadian whisky''?
     On February 9, 2022, the Department of the Treasury 
released a report, ``Competition in the Markets for Beer, Wine, and 
Spirits,'' which was produced in response to Executive Order 14036, 
``Promoting Competition in the American Economy'' (86 FR 36987, July 9, 
2021). Would the addition of a standard of identity for American Single 
Malt Whisky affect competition in the alcohol beverage market?

Submitting Comments

    You may submit comments on this proposal as an individual or on 
behalf of a business or other organization via the Regulations.gov 
website or via postal mail, as described in the ADDRESSES section of 
this document. Your comment must reference Notice No. 213 and must be 
submitted or postmarked by the closing date shown in the DATES section 
of this document. You may upload or include attachments with your 
comment. You also may submit a comment requesting a public hearing on 
this proposal. The TTB Administrator reserves the right to determine 
whether to hold a public hearing. If TTB schedules a public hearing, it 
will publish a notice of the date, time, and place for the hearing in 
the Federal Register.

Confidentiality and Disclosure of Comments

    All submitted comments and attachments are part of the rulemaking 
record and are subject to public disclosure. Do not enclose any 
material in your comments that you consider confidential or that is 
inappropriate for disclosure.
    TTB will post, and you may view, copies of this document, its 
supporting materials, and any comments TTB receives about this proposal 
within the related Regulations.gov docket. In general, TTB will post 
comments as submitted, and it will not redact any identifying or 
contact information from the body of a comment or attachment.
    Please contact TTB's Regulations and Rulings division by email 
using the web form available at https://www.ttb.gov/contact-rrd, or by 
telephone at 202-453-2265, if you have any questions regarding how to 
comment on this proposal or to request copies of this document, its 
supporting materials, or the comments received in response.

Regulatory Analysis and Notices

Regulatory Flexibility Act

    Pursuant to the requirements of the Regulatory Flexibility Act (5 
U.S.C. 601 et seq.), TTB certifies that this proposed rule, if adopted, 
would not have a significant economic impact on a substantial number of 
small entities. The proposed rule only adds a new standard of identity 
for whisky at 27 CFR 5.143, which allows for the designation of a new 
class and type designation on labels, and it imposes no new reporting, 
recordkeeping, or other

[[Page 45730]]

administrative requirements. TTB searched the COLAs Online database and 
did not find any labels that we believe would be affected, but we are 
taking public comment on the issue of affected labels to get more 
information about the potential economic effects of the rulemaking. 
Therefore, no regulatory flexibility analysis is required.

Executive Order 12866

    It has been determined that this proposed rule is not a significant 
regulatory action as defined by Executive Order 12866 of September 30, 
1993. Therefore, no regulatory assessment is required.

Drafting Information

    Christopher M. Thiemann of the Regulations and Rulings Division 
drafted this notice of proposed rulemaking.

List of Subjects in 27 CFR Part 5

    Advertising, Alcohol and alcoholic beverages, Consumer protection, 
Customs duties and inspection, Imports, Labeling, Liquors, Packaging 
and containers, and Reporting and recordkeeping requirements.

Proposed Regulatory Amendment

    For the reasons discussed in the preamble, TTB proposes to amend 
title 27, chapter I, part 5, Code of Federal Regulations, as follows:

PART 5--LABELING AND ADVERTISING OF DISTILLED SPIRITS

0
1. The authority citation for part 5 continues to read as follows:

    Authority: 26 U.S.C. 5301, 7805, 27 U.S.C. 205 and 207.

Subpart C--Standards of Identity for Distilled Spirits

0
2. Section 5.143 is amended by:
0
a. Adding a sentence at the end of paragraph (b); and
0
b. In Table 1 to paragraph (c), adding paragraph (15).
    The additions read as follows:


Sec.  5.143  Whisky.

* * * * *
    (b) * * * ``American single malt whisky'' must be distilled 
entirely at one U.S. distillery, and must be mashed, distilled, and 
aged in the United States.
    (c) * * *

                               Table 1 to Paragraph (c)--Types of Whisky and Production, Storage, and Processing Standards
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                   Allowable coloring,
               Type                         Source           Distillation proof          Storage            Neutral spirits        flavoring, blending
                                                                                                               permitted           materials permitted
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
(15) American single malt whisky..  Fermented mash of 100  160[deg] or less.....  Oak barrels not       No.....................  Yes.
                                     percent malted                                exceeding 700
                                     barley.                                       liters.
--------------------------------------------------------------------------------------------------------------------------------------------------------

* * * * *

    Signed: July 20, 2022.
Mary G. Ryan,
Administrator.
    Approved: July 20, 2022.
Thomas C. West, Jr.,
Deputy Assistant Secretary (Tax Policy).
[FR Doc. 2022-16244 Filed 7-28-22; 8:45 am]
BILLING CODE 4810-31-P