[Federal Register Volume 75, Number 236 (Thursday, December 9, 2010)]
[Notices]
[Pages 76728-76729]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-30971]


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ENVIRONMENTAL PROTECTION AGENCY

[EPA-R07-OW-2010-0898; FRL-9236-7]


Notice of a Regional Project Waiver of Section 1605 (Buy 
American) of the American Recovery and Reinvestment Act of 2009 (ARRA) 
to the Central Iowa Water Association

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.

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SUMMARY: EPA is hereby granting a waiver of the Buy American 
requirements of ARRA Section 1605 under the authority of Section 
1605(b)(2) [manufactured goods are not produced in the United States in 
sufficient and reasonably available quantities and of a satisfactory 
quality] to the Central Iowa Water Association (CIWA) for the purchase 
of ORION Water Meter Monitor with Leak Detection Indicator in-home 
water meter monitors manufactured in Malaysia by Eastech, Inc., under 
license from Badger Meter, Inc., located in Milwaukee, Wisconsin. This 
is a project specific waiver and only applies to the use of the 
specified product for the ARRA project being proposed. Any other ARRA 
recipient that wishes to use the same product must apply for a separate 
waiver based on project specific circumstances. The waiver applicant 
states that the Badger in-home water meter monitors are the only 
devices that are compatible with the water meter heads installed by the 
CIWA. The Regional Administrator is making this determination based on 
the review and recommendations of the Drinking Water State Revolving 
Fund (DWSRF) staff. CIWA has provided sufficient documentation to 
support their waiver request. The Assistant Administrator of the Office 
of Administration and Resources Management has concurred on this 
decision to make an exception to Section 1605 of ARRA.

DATES: Effective Date: November 30, 2010.

FOR FURTHER INFORMATION CONTACT: Christopher Simmons, Environmental 
Engineer, Water Wetlands and Pesticides Division (WWPD), Environmental 
Protection Agency, Region 7, 901 N. 5th Street, Kansas City, KS 66101, 
telephone number (913) 551-7237; e-mail address: 
<a href="/cdn-cgi/l/email-protection#592a30343436372a773a312b302a2d3629313c2b193c2938773e362f"><span class="__cf_email__" data-cfemail="37445e5a5a58594419545f455e444358475f52457752475619505841">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: In accordance with ARRA Section 1605(c), EPA 
hereby provides notice that we are granting a project waiver of the 
requirements of Section 1605(a) of Public Law 111-5, Buy American 
requirements, to the Central Iowa Water Association for the purchase of 
a non-domestically manufactured ORION Water Meter Monitor with Leak 
Detection Indicator in-home water meter monitors manufactured in 
Malaysia by Eastech, Inc., under license from Badger Meter, Inc., 
located in Milwaukee, Wisconsin, to meet CIWA's project specifications.
    Section 1605 of the ARRA requires that none of the appropriated 
funds may be used for the construction, alteration, maintenance, or 
repair of a public building or a public works project unless all of the 
iron, steel, and manufactured goods used in the project is produced in 
the United States, or unless a waiver is provided to the recipient by 
the head of the appropriate agency, here the EPA. A waiver may be 
provided if EPA determines that (1) applying these requirements would 
be inconsistent with the public interest; (2) iron, steel, and the 
relevant manufactured goods are not produced in the United States in 
sufficient and reasonably available quantities and of a satisfactory 
quality; or (3) inclusion of iron, steel, and the relevant manufactured 
goods produced in the United States will increase the cost of the 
overall project by more than 25 percent.
    The CIWA drinking water improvement project is proposing the use of 
a non-domestically manufactured water meter monitor. This project will 
improve efficiency and promote water conservation by providing 
customers with a single meter reading platform and in-home monitoring 
devices. Residential water meters have been supplied and utilized by 
Sensus since the late 1970's. The current Sensus water meters are now 
aged and obsolete. The Sensus meter technology has been discontinued 
and an in home monitoring unit is not available for the North American 
market.
    The Drinking Water State Revolving Fund (DWSRF) staff has reviewed 
this waiver request and has determined that the supporting 
documentation provided by the CIWA establishes both a proper basis to 
specify a particular manufactured good, and that there is no domestic 
manufactured good currently available. The information provided is 
sufficient to meet the following criteria listed under Section 1605(b) 
of the ARRA and in the April 28, 2009 Memorandum: Iron, steel, and the 
manufactured goods are not produced in the United States in sufficient 
and reasonably available quantities and of a satisfactory quality.
    EPA has also evaluated CIWA's request to determine if its 
submission is considered late or if it could be considered timely, as 
per the OMB Guidance at CFR 176.120. EPA will generally regard waiver 
requests with respect to components that were specified in the bid 
solicitation or in a general/primary construction contract as ``late'' 
if submitted after the contract date. However, EPA could also determine 
that a request be evaluated as timely, though made after the date that 
the contract was signed, if the need for a waiver was not reasonably 
foreseeable. If the need for a waiver is reasonably foreseeable, then 
EPA could still apply discretion in these late cases as per the OMB 
Guidance, which says ``the award official may deny the request.'' For 
those waiver requests that do not have a reasonably unforeseeable basis 
for lateness, but for which the waiver basis is valid and there is no 
apparent gain by the ARRA recipient or loss on behalf of the 
government, then EPA will still consider granting a waiver.
    In this case, CIWA's waiver request indicates that the Badger in-
home water meter monitors are the only devices compatible with the 
Badger meter transmitter system and that no other water meter monitors 
are capable of meeting satisfactory quality to meet the technical 
specifications. The existing installed Sensus meter technology has been 
discontinued and Sensus has indicated that an equivalent in home 
monitoring unit is not available from Sensus for the North American 
market at this time. CIWA was not informed that the water meter monitor 
was not American made until the point of signing a final purchase 
agreement, after the contract was signed. There is no

[[Page 76729]]

indication that CIWA failed to request a waiver in order to avoid the 
requirements of the ARRA, particularly since there are no domestically 
manufactured products available that meet the project specifications. 
Therefore, EPA will consider CIWA's waiver request, a foreseeable late 
request, as though it had been timely made since there is no gain by 
CIWA and no loss by the government due to the late request.
    Furthermore, the purpose of the ARRA is to stimulate economic 
recovery by funding current infrastructure construction, not to delay 
projects that are ``shovel ready'' by requiring potential SRF eligible 
recipients, such as the Central Iowa Water Association to revise their 
design standards and specifications as well as their construction 
schedule. There are no domestic manufacturers that can provide a 
compatible water meter monitor that meets the specifications of this 
drinking water improvement project. To delay this construction would 
directly conflict with a fundamental economic purpose of ARRA, which is 
to create or retain jobs.
    The April 28, 2009 EPA HQ Memorandum, ``Implementation of Buy 
American provisions of Public Law 111-5, the `American Recovery and 
Reinvestment Act of 2009' '' (``Memorandum''), defines reasonably 
available quantity as ``the quantity of iron, steel, or relevant 
manufactured good is available or will be available at the time needed 
and place needed, and in the proper form or specification as specified 
in the project plans and design.'' The same Memorandum defines 
``satisfactory quality'' as ``the quality of steel, iron or 
manufactured good specified in the project plans and designs.''
    The March 31, 2009 Delegation of Authority Memorandum provided 
Regional Administrators with the temporary authority to issue 
exceptions to Section 1605 of the ARRA within the geographic boundaries 
of their respective regions and with respect to requests by individual 
grant recipients.
    Having established both a proper basis to specify the particular 
good required for this project and that this manufactured good was not 
available from a producer in the United States, the CIWA is hereby 
granted a waiver from the Buy American requirements of Section 1605(a) 
of Public Law 111-5. This waiver permits use of ARRA funds for the 
purchase of a non-domestic manufactured ORION Water Meter Monitors with 
Leak Detection Indicator documented in the CIWA's waiver request 
submittal dated June 24, 2010. This supplementary information 
constitutes the detailed written justification required by Section 
1605(c) for waivers based on a finding under subsection (b).

    Authority:  Public Law 111-5, section 1605.

    Dated: November 30, 2010.
Karl Brooks,
Regional Administrator, Region 7.
[FR Doc. 2010-30971 Filed 12-8-10; 8:45 am]
BILLING CODE 6560-50-P


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