[Federal Register Volume 81, Number 50 (Tuesday, March 15, 2016)]
[Proposed Rules]
[Pages 13765-13769]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-05600]


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DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 69

[Docket ID: DOD-2014-OS-0006]
RIN 0790-AJ18


School Boards for DoD Domestic Dependent Elementary and Secondary 
Schools (DDESS)

AGENCY: Under Secretary of Defense for Personnel and Readiness, DoD.

ACTION: Proposed rule.

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SUMMARY: This proposed rule establishes policy, assigns 
responsibilities, and provides procedures for the establishment and 
operation of elected school boards for elementary, middle and high 
schools operated by the DoD Education Activity in the Continental 
United States and the Territories, Possessions and Commonwealths. 
Specific direction is given to facilitate compliance with 10 U.S.C. 
2164(d), as implemented by DoD Instruction 1342.25, regarding the 
election of board members, composition, roles and responsibilities, 
operating procedures and resolution of conflicts.

DATES: Comments must be received by May 16, 2016.

ADDRESSES: You may submit comments, identified by docket number or 
Regulatory Information Number (RIN) number and title, by any of the 
following methods:
     Federal Rulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Mail: Department of Defense, Office of the Deputy Chief 
Management Officer, Directorate of Oversight and Compliance, Regulatory 
and Audit Matters Office, 9010 Defense Pentagon, Washington, DC 20301-
9010.
    Instructions: All submissions received must include the agency name 
and docket number or RIN for this Federal Register document. The 
general policy

[[Page 13766]]

for comments and other submissions from members of the public is to 
make these submissions available for public viewing on the Internet at 
http://www.regulations.gov as they are received without change, 
including any personal identifiers or contact information.

FOR FURTHER INFORMATION CONTACT: Marsha Jacobson, 571-372-1900.

SUPPLEMENTARY INFORMATION: The revisions to this proposed rule will be 
reported in future status updates as part of DoD's retrospective plan 
under Executive Order 13563 completed in August 2011. DoD's full plan 
can be accessed at: http://www.regulations.gov/#!docketDetail;D=DOD-
2011-OS-0036.

Executive Summary

I. Purpose of the Regulatory Action

    a. Purpose. The Department of Defense has many DoD Domestic 
Dependent Elementary and Secondary Schools (DDESS) that require school 
boards to carry out the responsibilities and procedures described in 
this proposed rule.
    b. Succinct statement of legal authority for the regulatory action.
    Congress directed the Secretary of Defense to provide for the 
establishment of school boards at DDESS schools established under the 
authority of 10 U.S.C. 2164. Pursuant to that direction, the Secretary 
of Defense issued DoD Instruction 1342.25, School Boards for Department 
of Defense Domestic Dependent Elementary and Secondary Schools (DDESS), 
dated October 30, 1996. This rule updates and revises the instruction 
in accordance with the changes to 10 U.S.C. 2164.

II. Summary of the Major Provisions of the Regulatory Action in 
Question

    The major provisions of this regulatory action include:
    a. Providing a list of the duties and responsibilities school board 
members will perform.
    b. Describing the process of voting and electing school board 
members.
    c. Details the school board operating procedures, including written 
agendas, possible removal of school board members by USD(P&R), 
reimbursement for official travel, among other procedures discussed in 
this rule. The vast majority of the duties and responsibilities of 
school board members and the board operating procedures are unchanged, 
but several duties have been revised in accordance with various policy 
changes and legal limitations. In addition, one of the changes is due 
to the statutory change affecting the establishment of school boards in 
Puerto Rico and Guam.

III. Costs and Benefits

    There are no additional costs associated with the implementation of 
this rule. This is a revised rule which provides updated guidance and 
clarification of the language in the statute. The establishment and 
operation of elected school boards for elementary, middle and high 
schools operated by the DoD Education Activity on military 
installations in the United States (including the territories, 
commonwealths, and possessions of the United States) remain the same. 
School Boards are elected by the parents of students attending the DoD 
schools. School Board members do not receive any monetary compensation 
for their services. Board members voluntarily serve as the conduit 
between the parents of students attending the DoD schools and the DoDEA 
District Superintendent who is responsible for overseeing the operation 
of the schools. The costs, if any, are only incidental costs. The rule 
primarily clarifies and updates existing activities with respect to 
School Board operations.

Regulatory Procedures

Executive Order 12866, ``Regulatory Planning and Review'' and Executive 
Order 13563, ``Improving Regulation and Regulatory Review''

    Executive Orders 13563 and 12866 direct agencies to assess all 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distribute impacts, and equity). Executive 
Order 13563 emphasizes the importance of quantifying both costs and 
benefits, of reducing costs, of harmonizing rules, and of promoting 
flexibility. It has been determined that this rule is not a significant 
regulatory action. The rule does not: (1) Have an annual effect on the 
economy of $100 million or more or adversely affect in a material way 
the economy; a section of the economy; productivity; competition; jobs; 
the environment; public health or safety; or State, local, or tribal 
governments or communities; (2) Create a serious inconsistency or 
otherwise interfere with an action taken or planned by another Agency; 
(3) Materially alter the budgetary impact of entitlements, grants, user 
fees, or loan programs, or the rights and obligations of recipients 
thereof; or (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
these Executive Orders.
Sec. 202, Public Law 104-4, ``Unfunded Mandates Reform Act''
    Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) 
(Pub. L. 104-4) requires agencies assess anticipated costs and benefits 
before issuing any rule whose mandates require spending in any 1 year 
of $100 million in 1995 dollars, updated annually for inflation. In 
2014, that threshold is approximately $141 million. This document will 
not mandate any requirements for State, local, or tribal governments, 
nor will it affect private sector costs.
Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. 601)
    The Department of Defense certifies that this proposed rule is not 
subject to the Regulatory Flexibility Act (5 U.S.C. 601) because it 
would not, if promulgated, have a significant economic impact on a 
substantial number of small entities. Therefore, the Regulatory 
Flexibility Act, as amended, does not require us to prepare a 
regulatory flexibility analysis.
Public Law 96-511, ``Paperwork Reduction Act'' (44 U.S.C. Chapter 35)
    It has been certified that 32 CFR part 69 does not impose reporting 
or recordkeeping requirements under the Paperwork Reduction Act of 
1995.
Executive Order 13132, ``Federalism''
    Executive Order 13132 establishes certain requirements that an 
agency must meet when it promulgates a proposed rule (and subsequent 
final rule) that imposes substantial direct requirement costs on State 
and local governments, preempts State law, or otherwise has Federalism 
implications. This proposed rule will not have a substantial effect on 
State and local governments.

List of Subjects in 32 CFR Part 69

    Elementary and secondary education, Government employees, and 
Military personnel.

    Accordingly 32 CFR part 69 is proposed to be revised to read as 
follows:

Sec.
69.1 Purpose.
69.2 Applicability.
69.3 Definitions.
69.4 Policy.
69.5 Responsibilities.
69.6 Procedures.

    Authority: 5 U.S.C. Appendix, 10 U.S.C. 1783 and 2164.


[[Page 13767]]



PART 69--SCHOOL BOARDS FOR DOD DOMESTIC DEPENDENT ELEMENTARY AND 
SECONDARY SCHOOLS (DDESS)


Sec.  69.1  Purpose.

    This part establishes policy, assigns responsibilities, and 
provides procedures for the establishment and operation of elected 
school boards for schools operated by the DoD in accordance with 10 
U.S.C. 2164.


Sec.  69.2  Applicability.

    This part:
    (a) Applies to:
    (1) Office of the Secretary of Defense, the Military Departments, 
the Office of the Chairman of the Joint Chiefs of Staff and the Joint 
Staff, the Combatant Commands, the Office of the Inspector General of 
the Department of Defense, the Defense Agencies, the DoD Field 
Activities, and all other organizational entities within the DoD.
    (2) Schools (pre-kindergarten through grade 12) operated by the DoD 
in accordance with DoD Directive 1342.20, ``Department of Defense 
Education Activity (DoDEA)'' (available at http://www.dtic.mil/whs/directives/corres/pdf/134220p.pdf), and 10 U.S.C. 2164 within the 
United States and U.S. territories, possessions, and commonwealths.
    (b) Does not apply to elected school boards established under State 
or local law for DDESS special arrangements.


Sec.  69.3  Definitions.

    Unless otherwise noted, these terms and their definitions are for 
the purposes of this part.
    Arrangements. Actions taken by the Secretary of Defense to provide 
a free public education to dependent children of active duty military 
members and civilian employees of the Federal Government in accordance 
with 10 U.S.C. 2164 through DDESS arrangements or DDESS special 
arrangements.
    DDESS arrangement. An agreement whereby a school operated by the 
DoD under DoD Directive 1342.20 and 10 U.S.C. 2164 provides a free 
public education for eligible children.
    DDESS special arrangement. An agreement made in accordance with 10 
U.S.C. 2164 between the Secretary of Defense, and a local education 
agency whereby a school or a school system operated by the local 
education agency or private education agency provides educational 
services to eligible dependent children of active duty military members 
and full time DoD civilian employees. Arrangements result in partial or 
total federal funding to the local public education agency for the 
educational services provided.
    Parent. The biological father or mother of a child when parental 
rights have not been legally terminated; a person who, by order of a 
court of competent jurisdiction, has been declared the father or mother 
of a child by adoption; the legal guardian of a child; or a person in 
whose household a child resides, provided that such a person stands in 
loco parentis to that child and contributes at least one-half of the 
child's support.
    Quorum. A majority of the total number of school board members 
authorized on the particular school board.
    Special election. A special election is an election that is held 
between the regularly scheduled annual school board elections.


Sec.  69.4  Policy.

    It is DoD policy that:
    (a) Except for the Commonwealth of Puerto Rico (referred to in this 
part as ``Puerto Rico'') and the Territory of Guam (referred to in this 
part as ``Guam''), each DDESS arrangement must have an elected school 
board established and operated in accordance with DoD Directive 1342.20 
and 10 U.S.C. 2164, and this part. One school board may be established 
for all such schools in Puerto Rico and in Guam.
    (b) Because members of DDESS elected school boards, when acting in 
the capacity as a school board member, are not U.S. Government 
employees or members of the military, they may not exercise 
discretionary governmental authority such as taking personnel actions 
or establishing governmental policies, or perform other inherently 
governmental functions.
    (c) The DDESS chain of supervision within DDESS for matters 
relating to DDESS arrangements operated in accordance with DoD 
Directive 1342.20 and 10 U.S.C. 2164 will be from the Director, DDESS, 
to the superintendent of each DDESS arrangement. The superintendent 
will inform the school board of all matters affecting the operation of 
the DDESS arrangement. Direct liaison among the school board, the 
Director, DDESS, and the superintendent is authorized for all matters 
pertaining to the DDESS arrangement.


Sec.  69.5  Responsibilities.

    (a) Under the authority, direction, and control of the Under 
Secretary of Defense for Personnel and Readiness (USD(P&R)), unless 
otherwise directed by statute, Presidential directive, or DoD policy, 
the Assistant Secretary of Defense for Manpower and Reserve Affairs 
(ASD(M&RA)) makes the final decision on all formal appeals to 
directives and other guidance submitted by the school board or 
superintendent.
    (b) Under the authority, direction, and control of the ASD(M&RA), 
the Director, DoD Education Activity (DoDEA), oversees DDESS 
arrangements and ensures implementation of the procedures in Sec.  
69.6.


Sec.  69.6  Procedures.

    (a) Implementation.
    (1) The Director, DDESS, will:
    (i) Oversee the establishment of elected school boards in DDESS 
arrangements, which, pursuant to 10 U.S.C. 2164(d)(6), need not comply 
with the provisions of 5 U.S.C. Appendix, also known and referred to in 
this part as ``The Federal Advisory Committee Act of 1972,'' as 
amended.
    (ii) Monitor compliance by the superintendents and school boards 
with applicable statutory and regulatory requirements and this part. In 
the event of suspected noncompliance, take appropriate action, which 
includes notifying the superintendent and the school board president of 
the affected DDESS arrangement.
    (iii) Determine when the actions of a school board conflict with an 
applicable statute, regulation, or other guidance or when there is a 
conflict in the views of the school board and the superintendent. When 
such conflicts occur, assist the superintendent and the school board in 
resolving them, or direct that such actions be discontinued. Such 
disapprovals must be in writing to the school board and the 
superintendent concerned and must state the specific supporting reason 
or reasons.
    (2) School board members will:
    (i) Participate in the development and oversight of fiscal, 
personnel, and educational policies, procedures, and programs for the 
DDESS arrangement concerned, consistent with this part.
    (ii) Approve agendas and prepare minutes for school board meetings. 
A copy of the approved minutes of school board meetings will be 
forwarded to the Director, DDESS, within 10 working days after the date 
the minutes are approved.
    (iii) Advise the Director, DDESS, in competitively filling any 
superintendent vacancy.
    (A) If the Director, DDESS, decides not to fill a superintendent 
vacancy, or to fill a vacancy through internal reassignment, school 
board members will be provided the opportunity for written comment to 
the Director, DDESS, on this issue and final

[[Page 13768]]

determination will be made by the Director, DDESS.
    (B) If the Director, DDESS, elects to fill a superintendent vacancy 
competitively, each school board in the respective school district may, 
at the school board's discretion, provide one school board 
representative (i.e., the school board president) to participate as a 
member of the DDESS Director's selection panel. The school board 
representative to a selection panel must be either a full-time or 
permanent part-time government employee, a military member, or a member 
of a military family, so that the selection panel will not be 
considered an advisory committee pursuant to the Federal Advisory 
Committee Act and 10 U.S.C. 1783.
    (C) In advising the Director, DDESS, the selection panel will 
provide advice to the Director, DDESS, by reviewing applications for 
the superintendent vacancy, preparing a list of qualified candidates, 
interviewing candidates, and ranking the list of recommended candidates 
for the DDESS Director's selection.
    (iv) Prepare and provide to the Director, DDESS, an annual written 
review of the superintendent's performance based on established 
critical elements. This advisory review may be provided to the 
superintendent or inserted into the final comments of the performance 
review.
    (v) Participate in the development of the district's budget to 
submit to the Director, DDESS, for his or her approval. Oversee the 
approved budget, in conjunction with the superintendent, as appropriate 
for operation of the school arrangement.
    (vi) Invite the superintendent to attend all school board meetings.
    (vii) Provide advice to the superintendent on the operation of the 
schools and the implementation of the approved budget.
    (viii) Channel communications with school employees to the 
superintendent. Refer all applications, complaints, and other 
communications, oral or written, to the superintendent.
    (ix) Participate in the development of school policies, rules, and 
regulations in conjunction with the superintendent, and recommend which 
policies will be reflected in the school policy manual. The school 
policy manual, which will be issued by the superintendent, may include:
    (A) A statement of the school philosophy.
    (B) The roles and responsibilities of school administrative and 
educational personnel.
    (C) Provisions for publishing an annual school calendar.
    (D) Provisions on instructional services, including policies to 
develop and adopt curriculum and textbooks.
    (E) Regulations affecting students, including attendance, grading, 
promotion, retention, and graduation criteria, and the student code of 
rights, responsibilities, and conduct.
    (F) School policy on community relations and non-instructional 
services, including maintenance and custodial services, food services, 
and student transportation.
    (G) School policy and legal limits on financial operations, 
including accounting, disbursing, contracting, and procurement; 
personnel operations, including conditions of employment and labor 
management regulations; and the processing of, and response to, 
complaints.
    (H) Procedures providing for new school board member orientation.
    (I) Any other matters the school board and the superintendent 
determine to be necessary.
    (x) Prepare and submit formal appeals to directives and other 
guidance that, in the view of the school board, adversely impact the 
operation of the DDESS either through the operation and management of 
DDESS or a specific DDESS arrangement in accordance with 10 U.S.C. 
2164.
    (A) Written formal appeals with justification and supporting 
documentation must be submitted by the school board or superintendent 
to the ASD(M&RA).
    (B) The ASD(M&RA) will make the final decision on all formal 
appeals on matters pertaining to his or her charter directive.
    (C) The Director, DDESS, will provide the appealing body a written 
review of the findings relating to the merits of the appeal.
    (D) Formal appeals will be handled expeditiously by all parties to 
minimize any adverse impact on the operation of the DDESS arrangement.
    (xi) Enforce school board operating procedures.
    (b) Composition of the School Board.
    (1) To be a school board member, an individual must be a resident 
of the military installation at which the DDESS arrangement is located 
or, in the case of candidates for school boards in Puerto Rico and 
Guam, be the parent of an eligible child currently enrolled in the 
DDESS arrangement; cannot be employed by the DDESS arrangement; and 
cannot be a registered federal lobbyist.
    (2) The school board will recommend to the Director, DDESS, the 
number of elected school board voting members, which must be no fewer 
than three and no more than nine, depending upon local needs. The 
members of the school board will select by majority vote of the total 
number of school board members authorized at the beginning of each 
official school board term, one member to act as president and another 
to act as vice president.
    (i) The president and vice president will each serve for 1 year.
    (ii) The president will preside over school board meetings and 
provide leadership for related activities and functions.
    (iii) The vice president will serve in the absence of the 
president.
    (iv) If the position of president is vacated for any reason, the 
vice president will assume the position of president until the position 
is either vacated or the next annual/regularly-scheduled school board 
election, whichever occurs first.
    (v) The resulting vacancy in the position of the vice president 
will be filled by the majority vote of all members of the incumbent 
board.
    (3) School board members, with the exception of travel and per diem 
related to official school board business, may not receive compensation 
for their service on the school board.
    (4) School board members may not have any financial interest in any 
company or organization doing business with DDESS. Waivers to this 
restriction may be granted on a case-by-case basis by the Director, 
DDESS, in coordination with the Office of General Counsel of the DoDEA.
    (5) The DDESS arrangement superintendent will serve as a non-voting 
observer to all school board meetings.
    (6) The installation commander will:
    (i) Serve as a non-voting observer to the school board.
    (ii) Convey command concerns to the school board and the 
superintendent and keep the school board and the superintendent 
informed of changes and other matters within the host installation that 
affect school expenditures or operations.
    (c) School Board Electorate. School board members will be elected 
by parents of students who attend the school. Each parent will have one 
vote.
    (d) Election of School Board Members.
    (1) The superintendent, in consultation with the school board, will 
be responsible for developing the plans for nominating school board 
members and conducting the school board election and the special 
election process. The superintendent will

[[Page 13769]]

announce election results within 7 working days of the election.
    (2) The school board will determine a schedule for regular 
elections.
    (i) Parents will have adequate notice of the time and place of the 
election.
    (ii) Military members in a deployed or official tour of duty status 
at the time of the election may use email or other electronic means to 
cast a vote by absentee ballot, provided that the absentee ballot is 
received by the district superintendent prior to the close of the 
scheduled election.
    (iii) The superintendent must not disclose the particular vote of 
any absentee voter.
    (iv) All other votes must be cast in person by secret ballot at the 
time and place of the election.
    (v) The candidates(s) receiving the greatest number of votes will 
be elected as school board member(s).
    (3) Each candidate for school board membership must be nominated in 
writing by a member of the school board electorate. Votes may be cast 
at the time of election for a write-in candidate who has not filed a 
nomination petition if the write-in candidate is qualified to serve in 
the position sought.
    (4) The school board will determine the term of office for elected 
members, not to exceed 3 years, and the limit on the number of 
consecutive terms, if any. If the board fails to set these terms by the 
first day of the first full month of the school year, the terms will be 
set at 3 years, with a maximum of two consecutive terms.
    (5) When there is a sufficient number of school board vacancies 
that result in not having a quorum, a special election must be called 
by the superintendent.
    (i) The nomination and election procedures for a special election 
will be the same as those of regularly scheduled school board 
elections.
    (ii) Individuals elected by special election will serve until the 
next regularly scheduled school board election.
    (iii) Vacancies may occur due to the school board member's 
resignation, death, removal for cause, or transfer, or the 
disenrollment of a school board member's child(ren) from the DDESS 
arrangement.
    (6) The election process will provide staggered terms for board 
members (e.g., on the last day of the last month of each year, the term 
for some board members will expire).
    (e) School Board Operating Procedures.
    (1) The school board must operate from a written agenda at all 
meetings. Matters not placed on the agenda before the start of the 
meeting, but approved by a majority of the school board present, may be 
considered at the ongoing meeting and added to the agenda at that time.
    (2) A majority of the total number of school board members 
authorized will constitute a quorum.
    (3) School board meetings must be conducted a minimum of four times 
a year. The school board president consistent with government-wide 
guidelines concerning the timely announcement of public meetings, 
should notify the school board members and the public of the scheduled 
board meeting not less than 5 calendar days before the meeting is 
scheduled. School board meetings will generally be open to the public. 
Pursuant to 10 U.S.C. 2164(d)(6), a school board need not comply with 
the provisions of the Federal Advisory Committee Act, but may close 
meetings as permitted by the Act.
    (4) The school board will not be bound in any way by any action or 
statement of an individual member or group of members of the board, 
except when such action or statement is approved by a majority of the 
school board members during a meeting.
    (5) Elected school board members may be removed by the USD(P&R), 
for dereliction of duty, malfeasance, or other grounds for cause shown. 
This authority may not be delegated below the level of the ASD(M&RA).
    (i) The school board concerned may recommend such removal with a 
two-thirds majority vote.
    (ii) Before a school board member may be removed, the member must 
be afforded due process, to include written notification of the basis 
for the action, review of the evidence or documentation considered by 
the school board, and an opportunity to respond.

    Dated: March 8, 2016.
Aaron Siegel,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2016-05600 Filed 3-14-16; 8:45 am]
 BILLING CODE 5001-06-P