Dear Tribal Leader,

On June 13, 2024, from 2-5 p.m. ET, the U.S. Department of Education (ED) will conduct a Tribal Consultation on the implementation of the Build America, Buy America Act and Tribal data sovereignty. This consultation advances the Department’s commitment to uphold the federal trust responsibility as described in Executive Order 13175 – Consultation and Coordination with Indian Tribal Governments and Executive Order 14112 – Reforming Federal Funding and Support for Tribal Nations to Better Embrace Our Trust Responsibilities and Promote the Next Era of Tribal Self-Determination.

The Tribal consultation will be conducted by the Office of Indian Education and facilitated by the White House Initiative on Advancing Educational Equity, Excellence, and Economic Opportunity for Native Americans and Strengthening Tribal Colleges and Universities.

Register for the Tribal Consultation.

Please follow the registration link above to participate in the consultation. To maintain online security, each attendee must register individually, and registration cannot be transferred to or used by others. Once you have completed registration, an individualized access link for the session will be sent to you with additional information.

Written Comment Period

Written public comments for both topics will only be collected through the TribalConsultation@ed.gov email address. The comment period is now open, and all comments must be received by 11:59 p.m. ET on July 15, 2024. The Department of Education remains steadfast in its commitment to honor the nation-to-nation relationship and advance Tribal sovereignty and self-determination.

A Tribal government may designate information provided during the consultation as “sensitive” and request non-disclosure of the information to the public. Certain federal laws, including the Freedom of Information Act, may require disclosure of information designated sensitive by a Tribal government. Questions about this notice can be sent to TribalConsultation@ed.gov. This consultation is a closed press event.

Background

Build America, Buy America Act (BABAA)

• On November 15, 2021, President Biden signed the Infrastructure Investment and Jobs Act P.L. 117-58 (IIJA) into law. A component of the IIJA is the Build America, Buy America Act (Division G, Title IX of the IIJA) (BABAA).
• BABAA establishes for all covered Federal agencies (including the U.S. Department of Education (ED)), the following domestic content procurement preference requirement: “none of the funds made available for a Federal financial assistance program for infrastructure…may be obligated for a project unless all of the iron, steel, manufactured products, and construction materials used in the project are produced in the United States.”
• At ED, infrastructure and the corresponding BABAA domestic sourcing requirements are generally limited to construction and broadband infrastructure.
• After review and a public comment period, ED may waive BABAA requirements when (1) applying the preference would be inconsistent with the public interest; (2) types of iron, steel, manufactured products, or construction materials are not produced in the United States in sufficient and reasonably available quantities or of a satisfactory quality; or (3) the inclusion of iron, steel, manufactured products, or construction materials produced in the United States will increase the cost of the overall project by more than 25 percent.
• For ED, BABAA requirements went into effect as of October 1, 2022.
• ED consulted with Tribes on August 23, 2022, regarding BABAA implementation before that implementation date. ED also heard consultation with Tribal Nations through a September 21, 2022, consultation hosted by the White House Council on Native American Affairs and other agencies.
• Since that time, OMB has established regulations regarding BABAA implementation, which are available at 2 CFR part 184, and supporting guidance in M-24-02 – Implementation Guidance on Application of Buy America Preference in Federal Financial Assistance Programs for Infrastructure.

ED has 4 agency-level waivers currently in effect:

1. Public Interest Tribal Consultation Waiver for Financial Assistance Agreements with Tribes: Applicable 2/7/2024 – 2/6/2025. This waiver applies to federally recognized Tribes, including their governmental arms and instrumentalities, or Tribal organizations (Federal financial assistance recipients who are Tribally Controlled Colleges and Universities (TCCUs) are included in the scope). The waiver allows the use of non-domestic iron, steel, manufactured products, and construction materials in infrastructure projects and activities. The waiver applies to grants obligated on or after 2/7/2024, and, in the case of grants obligated before 2/7/2024, but after 10/01/2022, the waiver applies to all expenditures for non-domestic iron, steel, manufactured products, and construction materials incurred after 2/7/2024.
2. De Minimis, Small Grants, and Minor Components Waiver: Applicable 7/31/2023 – 7/30/2028. The De Minimis element sets a De Minimis infrastructure project purchases threshold of 5% of total applicable project costs. Applicable project costs are defined as material costs subject to the Buy America domestic content procurement preference up to a maximum of $1,000,000. The Small Grants element applies to awards with total federal funding at or below the Simplified Acquisition Threshold, which is currently set at $250,000. The Minor Components element allows infrastructure grantees to use non-domestically produced miscellaneous minor iron and steel components comprising no more than 5% of the total material cost of an otherwise domestically produced iron and steel product. This waiver applies to infrastructure grants obligated on or after 7/31/2023, and, in the case of grants obligated before 7/31/2023, but after 10/01/2022; the waiver will apply to all expenditures for non-domestic iron, steel, manufactured products, and construction materials incurred after 7/31/2023.
3. Public Interest Waiver for the Pacific Island Territories of the Commonwealth of the Northern Mariana Islands, Guam, and American Samoa: Applicable 1/2/2024 – 1/1/2025. This waiver permits the use of non-domestic iron, steel, manufactured products, and construction materials in infrastructure projects located within the Pacific Island Territories (PITs) when the total Federal award exceeds the Simplified Acquisition Threshold, currently set at $250,000. The waiver applies to PIT infrastructure grants obligated on or after 1/2/2024, and, in the case of grants obligated before 1/2/2024, but after on or after 10/01/2022, the waiver applies to all expenditures for non-domestic iron, steel, manufactured products, and construction materials incurred after 1/2/2024.
4. Public Interest Waiver for Certain Previously Planned Infrastructure Projects: Applicable from 11/3/2023 – 11/2/2025. Waives BABAA requirements for ED awards obligated on or after 11/3/2023 that support (i) contracts that ED grantees entered into prior to 10/1/2022 and/or (ii) contracts entered into before 3/1/2023 resulting from solicitations published before 5/14/2022. For awards and amendments that otherwise meet these criteria but which were obligated before 11/3/2023, the waiver applies to eligible expenditures on or after 11/3/2023.

Listed below are the Department-administered grant programs subject to the BABAA requirements that are more likely to award grants to Tribes or Tribal organizations:

• Alaska Native Education (Assistance Listing Number 84.356A)
• American Indian Tribally Controlled Colleges and Universities (Part F) (ALN 84.031D)
• American Indian Tribally Controlled Colleges and Universities (ALN 84.031T)
• Individuals with Disabilities Education Act Part B
• Individuals with Disabilities Education Act Part C
• Fund for the Improvement of Postsecondary Education (FIPSE)- HBCU, TCCU, and MSI Research and Development Infrastructure Program (ALN 84.116H)

Data Sovereignty

High-quality, culturally relevant data collection is critical to meeting the educational needs of American Indian, Alaska Native, and Native Hawaiian (AI/AN and NH) students. In 2018, the U.S. Commission on Civil Rights’ Broken Promises report found that under 2007 guidelines (72 FR 59266), the Department collected data reports only from AI/AN students, who did not indicate that they were ‘multiracial’. This guideline will be updated with the Office of Budget and Management’s (OMB) revisions to Statistical Policy Directive No. 15 Standards for Maintaining, Collecting, and Presenting Federal Data on Race and Ethnicity. Along with federal data, Tribal Nations have a sovereign right to collect, use, manage, and access their data.

The Department is seeking input from Tribal Leaders and Tribal Education Departments regarding the development, collection, protection, and application of data sovereignty, including as it relates to education, student counts, traditional knowledge, and Native languages.

The Family Educational Rights and Privacy Act (FERPA)

FERPA (20 U.S.C. § 1232g; 34 CFR Part 99), is a federal law that is administered by the Student Privacy Policy Office (SPPO) in the U.S. Department of Education (Department) that provides certain rights for parents regarding their children’s education records. When a student reaches 18 years of age or attends an institution of postsecondary education at any age, he or she becomes an “eligible student,” and all rights under FERPA transfer from the parent to the student. FERPA applies to schools that receive funding under any program administered by the Department. Private and faith-based schools at the elementary and secondary levels generally do not receive such funding and are, therefore, generally not subject to FERPA.

FERPA protects “education records,” which are generally defined as records that are directly related to a student and maintained by an educational agency or institution or by a party acting for the agency or institution. An “educational agency or institution,” generally means a school district, a public elementary or secondary school, or an institution of postsecondary education such as a college or university.

Under FERPA, an educational agency or institution generally may not disclose personally identifiable information (PII), from a student’s education records to a third party unless the student’s parent has provided prior written consent. However, there are a number of exceptions to FERPA’s general consent requirement that permit a school to disclose PII from education records without consent, but they are not required to do so by FERPA. For more information regarding FERPA, please visit our student privacy website at: https://studentprivacy.ed.gov/ (-> l9nnctdbb.cc.rs6.net). In addition, here are two specific resources that may be helpful:

• A Parent Guide to the Family Educational Rights and Privacy Act (FERPA)
• Letter to UTAH SEA Regarding Disclosures to Indian Tribes-April 2005

The Department supports data transparency consistent with relevant statutory requirements. For example. https://data.ed.gov/ (-> l9nnctdbb.cc.rs6.net) provides access to the Department’s open data.

Consultation Questions

Build America, Buy America Act (BABAA)

1. What questions do Tribes have about the BABAA requirements? How would you prefer those questions be addressed? Are there particular formats or contexts for responding to questions that would be most useful?
2. Is your Tribe currently implementing any infrastructure projects using ED funds? If so, have you faced any BABAA-related challenges?
3. Does your Tribe generally source iron, steel, manufactured products, and/or construction materials from the United States?
4. Are there particular types of materials that you find particularly challenging to source in the United States?
5. How can ED assist Tribes in implementing the BABAA requirements?
6. Has your Tribe made use of an ED agency level BABAA waiver? If so, which one? Do you have any feedback you would like to share in terms of the process? If not, do you plan to use one in the future?
7. What other recommendations do Tribes have for ED related to BABAA policy, procedures, waivers, and guidance?

Data Sovereignty

1. The Department uses data to inform its budget, grantmaking, and other decisions. What sources of information or data on the performance and needs of Native American students, teachers, and schools do you believe should inform these processes the Department?
2. What types of data do you use to gather information about education and/or AI/AN and NH students? Is this public information? If so, please share sources with the Department.
3. Given existing statutory limitations, what recommendations do you have for promoting educational data sovereignty?
4. What recommendations do you have for specific federal reforms regarding the use of traditional knowledge in the U.S. educational system?
5. How can the federal government co-manage data with tribal governments, tribal organizations, and tribal colleges and universities including Native-serving institutions in postsecondary education?

Family Educational Rights and Privacy Act (FERPA)

How does FERPA impact a Tribe’s and/or Tribal Education Department’s ability to receive student-level data from educational agencies or institutions?