[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:
[email protected].
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
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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]
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