[Federal Register Volume 75, Number 35 (Tuesday, February 23, 2010)]
[Notices]
[Pages 8063-8065]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-3525]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-9114-8]


Notice of a Regional Waiver of Section 1605 (Buy American 
Requirement) of the American Recovery and Reinvestment Act of 2009 
(ARRA) to the City of North Pole (the City) Alaska

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.

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SUMMARY: The Acting Regional Administrator of EPA Region 10 is hereby 
granting a waiver of the Buy America requirements of ARRA Section

[[Page 8064]]

1605(a) 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 City for the 
purchase of ORION [supreg] Water Meter Monitor with Leak Detection 
Indicator in-home water meter monitors manufactured in Malaysia by 
Escatech, 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 City since 2007. No other water 
meter monitors meet satisfactory quality to meet the specifications.
    The Acting Regional Administrator is making this determination 
based on the review and recommendations of the Drinking Water Unit. The 
City has provided sufficient documentation to support their request.

DATES: Effective Date: February 11, 2010.

FOR FURTHER INFORMATION CONTACT: Johnny Clark, DWSRF ARRA Program 
Management Analyst, Drinking Water Unit, Office of Water & Watersheds 
(OWW), (206) 553-0082, U.S. EPA Region 10 (OWW-136), 1200 Sixth Avenue, 
Suite 900, Seattle, WA 98101.

SUPPLEMENTARY INFORMATION:
    In accordance with ARRA Section 1605(c), the EPA hereby provides 
notice that it is granting a project waiver of the requirements of 
Section 1605(a) of Public Law 111-5, Buy American requirements, to the 
City for the acquisition of ORION [supreg] Water Meter Monitor with 
Leak Detection Indicator in-home water meter monitors manufactured in 
Malaysia by Escatech, Inc., under license from Badger Meter, Inc., 
located in Milwaukee, Wisconsin. The applicant indicates that Badger 
in-home water meter monitors are the only devices that are compatible 
with the water meter heads installed by the City since 2007 and that no 
other water meter monitors are capable or meeting satisfactory quality 
to meet the technical 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 public work 
unless all of the iron, steel, and manufactured goods used in the 
project is produced in the United States unless a waiver is provided to 
the recipient by EPA. A waiver may be provided under Section 1605(b) if 
EPA determines that (1) Applying these requirements would be 
inconsistent with 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.
    This ARRA-funded project involves implementing a Water Meter 
Replacement Project by (1) improving efficiency by providing customers 
with a single meter reading platform and (2) promoting water 
conservation by providing customers with in-home monitoring devices. 
Because of extreme winter temperatures that can reach -60[deg] F., the 
City requires that water meters be installed inside heated structures. 
Moreover, the in-home monitoring feature strongly promotes water 
conservation through the early detection and remediation of leaks. The 
City has used residential water meters supplied by Badger Meter, Inc. 
since the 1990s. In 2007, the City began replacing the heads on 
previously installed water meters with water meter heads containing a 
new transmitting technology, also from Badger Meter, Inc. The 
replacement Badger water meter head transmits a radio signal that can 
only be read by Badger Meter licensed meter reading technology 
including the in-home water meter monitoring units which are the 
subject of this waiver request. The City has completed the installation 
of approximately 425 of these meters, with the cost of procuring and 
installing the remaining approximately 100 replacement meters to be 
supported by this ARRA assistance agreement.
    An inquiry by EPA's national contractor confirmed that no other 
electronic monitoring device is compatible with the Badger meter 
transmitter system. Based on available information, it is unlikely that 
another in-home meter monitoring device that is not licensed by Badger 
Meter, Inc. would function with the City's existing meter 
configuration. Use of another meter monitoring system would thus likely 
require replacement of the existing 425 meters and transmitters.
    EPA finds these considerations as stated by the City provide ample 
functional justification for their specification of these meters, 
particularly because the use of meters with the specified features is 
required for their effective performance in the respects required by 
the City. Further, as the City initiated its procurement and 
installation of these meters in 2007, well before the enactment of 
ARRA, the decision to do so was clearly not an attempt to avoid 
application of the Buy American provisions of ARRA. Therefore, the 
City's specifications for the particular Badger Meter model and 
features were justified.
    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'', defines ``satisfactory quality '' as the 
quality of iron, steel or the relevant manufactured good as specified 
in the project plans and design. The City has provided information to 
the EPA representing that there are currently no domestic manufacturers 
of the in-home water meter monitors that meet the project specification 
requirements. Based on additional research by EPA's consulting 
contractor (Cadmus), and to the best of the Region's knowledge at this 
time, there does not appear to be any other manufacturers capable of 
meeting the City's specifications.
    Furthermore, the purpose of the ARRA provisions was to stimulate 
economic recovery by funding current infrastructure construction, not 
to delay projects that are already shovel ready by requiring entities, 
like the City, to revise their design and potentially choose a more 
costly and less effective project. The imposition of ARRA Buy American 
requirements on such projects eligible for DWSRF assistance would 
result in unreasonable delay and thus displace the ``shovel ready'' 
status for this project. To further delay construction is in direct 
conflict with the most fundamental economic purposes of ARRA; to create 
or retain jobs.
    The Drinking Water Unit has reviewed this waiver request and has 
determined that the supporting documentation provided by the City is 
sufficient to meet the following criteria listed under Section 1605(b) 
and in the April 28, 2009, Implementation of Buy American provisions of 
Public Law 111-5, the ``American Recovery and Reinvestment Act of 
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.
    The basis for this project waiver is the authorization provided in 
Section 1605(b)(2), due to the lack of production of this product in 
the United States in sufficient and reasonably available

[[Page 8065]]

quantities and of a satisfactory quality in order to meet the City's 
design specifications. The March 31, 2009 Delegation of Authority 
Memorandum provided Regional Administrators with the authority to issue 
exceptions to Section 1605 of 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 City 
is hereby granted a waiver from the Buy American requirements of 
Section 1605(a) of Public Law 111-5 for the purchase ORION [supreg] 
Water Meter Monitor with Leak Detection Indicator in-home water meter 
monitors manufactured in Malaysia by Escatech, Inc., under license from 
Badger Meter, Inc., located in Milwaukee, Wisconsin as specified in the 
City's request of November 23, 2009. This supplementary information 
constitutes the detailed written justification required by Section 
1605(c) for waivers based on a finding under subsection (b).

    Authority:  P.L. 111-5, section 1605.

    Issued on: February 11, 2010.
Michelle L. Pirzadeh,
Acting Regional Administrator, EPA, Region 10.
[FR Doc. 2010-3525 Filed 2-22-10; 8:45 am]
BILLING CODE 6560-50-P