You’ve finally gone through that grueling process of getting licensed on the TTB level and you have all your formulas and COLAs in hand. Production is taking off and business has been better than ever. While you’re glad to see such great success, production space is limited and you are in dire need of expansion. However, the thought of going through the permitting process again is daunting—and you are not quite sure you want to have two separate DSP permits. Luckily, you’ve heard something about TTB amendments, but you do not know what this entails.
Many types of amendments are available to TTB-regulated businesses, some of which may be unique to the type of permit your company has with TTB. This article discusses several of the main types of amendments that may be an option to your TTB-permitted business.
1. Paper Versus Online
The very first question you should ask is the following: Was my company’s original federal basic permit application filed with the TTB via paper or online (i.e., through Permits Online or PONL)? The answer to this question will ultimately impact how an amendment application can be filed.
If the original permit was filed several years ago, it was most likely filed through a paper application. TTB’s National Revenue Center (NRC) is in the process of transferring paper applications to its online system. However, as this appears to be a very ambitious task and may entail reviewing many hundreds of papers or documents per permittee, the agency has not transferred all permits to its PONL system. Yes, even this day and age, not all paper permits have been converted to PONL; TTB maintains that it is an overwhelming process.
If you’re uncertain if your paper application has been transferred to TTB’s online system, it is best to give NRC a call. Note that the permit filing is different from submitting labels or formulas to TTB via the COLAs Online or Formulas Online platforms—if you are able to submit label and formula applications online, this does not necessarily guarantee that permit amendments can also be done online. However gruesome the conversion process may be, there is a possibility (albeit small) that your paper permit may have been converted to the online system, which is why it is best to check in with NRC.
If it turns out that your permit has not been transferred, then you must file paper application for amendments. The processing time for paper applications is generally longer than that for electronic applications.
If your paper application has been transferred to TTB’s PONL system, you can request a link to existing documents via PONL. Once the link is approved, you will obtain access to the permit application, which will allow you to file and submit and amendment through TTB’s online portal.
If your permit application was originally filed online via PONL, an amendment application should be filed online via PONL. TTB takes the position that, if your original permit was filed online, it is easier and more efficient for the agency to process your permit amendments online.
2. Types of Amendments
Amendments can be filed for all types of TTB alcohol beverage permittees: wholesalers, importers, DSPs, wineries, and breweries. The types of amendments and allowances, however, will ultimately depend on the type of permit your business has.
a. Change in Premise Location
A permittee can submit an amendment for a change in premise location with respect to the original permit. Note, however, that such changes in premise locations are restricted to the same state in which the TTB permit was issued. For example, if TTB issued an importer permit to a business whose premise address is in New York State, the permittee is generally allowed to submit an amendment to TTB for a change in premise location within New York State. However, a change in premise location to (for example) Connecticut would require the permittee to file a new federal permit application (also known as an “original application”).
A similar amendment to the change in premise amendment is a change in premise address due to a change in address by the United States Postal Service (USPS). This amendment would be appropriate if the company has not physically moved but, instead, the proper address changed on behalf of the USPS.
b. Change in Mailing Address
A change in mailing address is another type of permit amendment that can be filed with TTB. However, unlike the change in premise location, the change in mailing address can overcome state borders. It is possible that the original mailing address may be in a completely separate state than the premise location.
c. Add/Remove Signing Authority or Power of Attorney
One of the documents required when completing any permit application is the Signing Authority document or TTB Form 5100.1. The Signing Authority Amendment allows you to: (1) authorize new individuals to sign for your company; and/or (2) remove individuals previously authorized under TTB Form 5100.1. Note that if authorizing new individuals, a new TTB Form 5100.1 or other applicable documentation showing authorization may need to be filed with this amendment.
Another amendment option is adding or removing Power of Attorney. The Power of Attorney document (TTB Form 5000.8) authorizes individuals outside of your organization to sign or act on your company’s behalf. An amendment must be filed to remove an individual previously authorized as Power of Attorney, and an amendment must be filed to add a new Power of Attorney.
d. Change in Operations
Are you or have you changed your permitted business’ operations? If yes, then this must be recorded with TTB by way of an amendment. This is the type of amendment that can vary depending on the type of permit your company maintains with TTB. For example, wholesalers and importers can easily file a change in operations amendment with TTB to declare that they will begin distributing or importing (respectively) a new commodity. There is also an opportunity for an importer permittee to change operations and branch into acting as a wholesaler, and vice versa. The trickier changes in operations apply to the DSP, winery, and brewery permittees, who may even require a new or additional permit if they change operations. Specific changes to a business’ operations should be reviewed by counsel or, at minimum, consulted through with TTB.
e. Change in Business Name
File an amendment with TTB if there has been a change in the business name. Generally, you need to include supporting documents (such as amended Articles of Organization or similar) that show the name change. Note that this amendment does not apply to changes in business entities, such as if the business changes from an LLC to a corporation.
f. Add or Remove Trade Name
If adding or removing a trade name—such as the operating name or bottling on account for name—select this amendment. This change may require proof of registration with your state for use of the trade name. If you are “bottling on account for,” you may be required to submit a letter that provides your company with the permission to bottle on account of the trade name.
g. Change in Control
If your business exhibits a change in actual or legal control (e.g., changes in stock ownership, LLC membership ownership, major changes to corporate officers or directors, etc.), then a change in control amendment should be filed with TTB. This type of amendment covers situations where the legal entity that operates your business will still control and operate the business (i.e., the legal entity itself still exists). (Contrast this to a situation where, for example, a corporation is dissolved and the legal entity no longer exists.)
h. Change in Officer/Director/Member or Stockholder/Interest
Select this amendment if there is a change in the officers, directors, members and managers, as well as any stockholders or interest holders who hold 10 percent or more of the company. This type of amendment generally focuses on a change of an individual person.
i. Add or Remove Non-Contiguous Premise
File a non-contiguous premise amendment with TTB if your operations will extend to a separate location where operations can still be reported under the same permit. For example, if you have a DSP permit and you plan to extend the operation to another location, you may be able to file the non-contiguous premise amendment and continue operations at the separate location under the same DSP permit. This would avoid the need to file for a completely new and distinct DSP permit for the separate location. Note that there are limitations on this amendment with respect to how far the non-contiguous premise may be with respect to your main premise. Additional steps, such as changes to the bond or submission of diagrams of the new premise, may also need to be taken. Of course, state law applies in this instance as well and should be consulted.
j. Change in Bond (i.e., Superseding or Strengthening)
Changing your bond will require an amended application to TTB. Changes may include an increase in the penal sum of the bond, a change of the address of the bonded premise, or a change of the surety company. Note that this amendment may not apply to some TTB-regulated operations (i.e., wholesalers) who are not required by the federal government to have a bond.
k. Add or Remove Alternating Premises or Alternation of Proprietor
An alternating premises amendment may be an option for some TTB-regulated entities such as breweries, distilleries, or wineries. This amendment should be filed if the permittee is adding or removing a contiguous distilled spirits plant, brewery, or winery. Certain information, such as a revised diagram, variance request, and change in bond or consent or surety, may need to be submitted with this amendment. Always check state law with respect to alternating premises requirements and allowances.
Another type of amendment that is available for certain permittees is the alternation of proprietor. The alternation of proprietor amendment allows an existing permittee to have another distillery, winery, or brewery plant of different ownership share the premises and/or equipment. Again, certain information, such as a revised diagram, variance request, or a change in bond or consent of surety, may need to be filed with TTB. Note that the business that will be sharing the space or using your facility’s equipment generally needs to obtain its own, distinct license with TTB. State law should also be consulted to ensure all requirements are properly fulfilled.
l. Termination of Business
Of course, this last amendment is required if the business will no longer be in operation. It alerts TTB that your company will be discontinuing its operation with respect to permitted alcohol beverage operations.
3. Conclusion
The most important thing about filing an amendment with TTB is to set out with a plan. Know and understand the types of amendments that are available to you as an industry member, many of which may depend on the type of permit your company holds with TTB. Also vital is confirmation of whether or not the original permit was filed via paper or online, which will influence how an amendment can be filed as well as the processing time of your amendment application. Paper generally takes longer than online amendment applications, however it may vary depending on the specialist to whom the application is assigned along with the completeness of corresponding documentation. Further, it is important to keep in mind that some types of amendments may be processed significantly faster than others. For example, a change in the business name may be a faster review than adding a non-contiguous premise. Again, much of the success of an application strongly depends on the operation itself, the proposed amendment, and supporting documentation.
For more information on wine or alcohol law, or TTB permits, please contact Lindsey Zahn.
DISCLAIMER: This blog post is for general information purposes only, is not intended to constitute legal advice, and no attorney-client relationship results. Please consult your own attorney for legal advice.