[NOTICE. This draft document has not been approved at any level of the Office of Education, or Department of Health, Education, and Welfare, and does not necessarily represent the policy of that agency. It is only an interim draft, and may not be relied upon as in any way authoritative by any person, institution, or agency seeking guidance for proceeding under Section 1202 of the Higher Education Act of 1965, as amended.]

Federal financial assistance is also subject to the provisions of Title IX of the Education Amendments of 1972 (prohibition of sex discrimination), and any regulations issued thereunder. (Public Law 92-318, Title IX)

§ 106.3 Definitions.

(a) "Act" means the Higher Education Act of 1965, Public Law 89-329, as amended. (20 U.S.C. 1001)

(b) "Area vocational school" means

(1) a specialized high school used exclusively or principally for the provision of vocational education to persons who are available for study in preparation for entering the labor market; or

(2) the department of a high school exclusively or principally used for providing vocational education in no less than five different occupational fields to persons who are available for study in preparation for entering the labor market; or

(3) a technical or vocational school used exclusively or principally for the provision of vocational education to persons who have completed or left high school and who are available for study in preparation for entering the labor market; or

(4) the department or division of a junior college or community college or university which provides vocational education in no less than five different occupational fields (under the supervision of the State Board for Vocational Education designated under the Vocational Education Act of 1963, as amended), leading to immediate employment but not necessarily leading to a baccalaureate degree, if it is available to all residents of the State or an area of the State designated and approved by the State Board for Vocational Education, and if, in the case of a school, department or division described in (3) or (4) above, it admits as regular students both persons who have completed high school and persons who have left high school. (c) "Commissioner" means the U.S. Commissioner of Education.

(d) "Community College" means any junior college, postsecondary vocational school, technical institute, or any other educational institution (which may include a four-year institution of higher education or a branch thereof) in any State which:

(1) is legally authorized within such State to provide a program of education beyond secondary education;

(2) admits as regular students persons who are high school graduates or the equivalent, or at least 18 years of age;

(3) provides a two-year postsecondary educational program leading to an associate degree, or acceptable for credit toward a bachelor's degree, and also provides programs of postsecondary vocational, technical, occupational, and specialized education;

(4) is a public or other nonprofit institution;

and

(5) is accredited as an institution by a nationally recognized accrediting agency or association, or if not so accredited

(A) is an institution that has obtained recognized preaccreditation status from a nationally recognized accrediting body, or

(B) is an institution whose credits are accepted on transfer, by not less than three accredited institutions, for credit on the same basis as if transferred from an institution so accredited.

(e) "Comprehensive program of planning for occupational education" means the planning for occupational education carried out by the State Commission pursuant to Section 1056 of the Act.

(f) "Institution of higher education" means an educational institution in any State which

(1) admits as regular students only persons having a certificate of graduation from a school providing secondary education, or the recognized equivalent of such a certificate;

(2) is legally authorized within such State to provide a program of education beyond secondary education;

[NOTICE. This draft document has not been approved at any level of the Office of Education, or Department of Health, Education, and Welfare, and does not necessarily represent the policy of that agency. It is only an interim draft, and may not be relied upon as in any way authoritative by any person, institution, or agency seeking guidance for proceeding under Section 1202 of the Higher Education Act of 1965, as amended.]

(3) provides an educational program for which it awards a bachelor's degree or provides not less than a two-year program which is acceptable for full credit toward such a degree;

(4) is a public or other nonprofit institution; and

(5) is accredited by a nationally recognized accrediting agency or association or, if not so accredited

(A) is an institution with respect to which the Commissioner has determined that there is satisfactory assurance, considering the resources available to the institution, the period of time, if any, during which it has operated, the effort it is making to meet accreditation standards, and the purpose for which this determination is being made, that the institution will meet the accreditation standards of such an agency or association within a reasonable time, or

(B) is an institution whose credits are accepted, on transfer, by not less than three institutions which are so accredited, for credit on the same basis as if transferred from an institution so accredited.

Such term also includes any school which provides not less than a one-year program of training to prepare students for gainful employment in a recognized occupation and which meets the provision of clauses (1), (2), (4), and (5).

(g) "Institution organized for profit" means an organization or institution the net earnings of which inure or may lawfully inure, to the benefit of any private shareholder or individual.

(h) "Junior college" means an institution of postsecondary education which is organized and administered to provide not more than a two-year program of study which is generally acceptable for full credit toward a bachelor's degree or for which an associate degree is awarded.

(i) "Nonprofit" as applied to a school, agency, organization or institution means a school, agency, organization or institution owned and operated by one or more nonprofit corporations or associations no part of the net earnings of which inures, or may lawfully inure, to the benefit of any private shareholder or individual.

(j) "Occupational education" means education, training, or retraining (including guidance, counseling, and placement services) which is designed to prepare or retrain individuals for gainful employment as semi-skilled or skilled workers or technicians or subprofessionals in recognized occupations (including new and emerging occupations), or to prepare individuals for enrollment in advanced technical education programs, but excluding any program to prepare individuals for employment in occupations which are generally considered professional or which require a baccalaureate or advanced degree. Professional occupations are listed in these Regulations, 45 CFR 102.4 (c) (2).

(k) "Postsecondary" as applied to education or educational institutions means education or educational institutions for persons 16 years of age or older who have graduated from or left elementary or secondary school.

(1) "Private," as applied to an educational institution, means that the institution is not under public supervision or control.

(m) "Proprietary," as applied to an educational institution, means that the institution is neither public nor nonprofit.

(n)" Public," as applied to an educational institution, means that the institution is under public supervision or control.

(0) "Specialized education" means programs formally approved and recognized by an institution of postsecondary education to do effectively all of the following: (1) provide all students appropriate guidance, counseling, and placement; (2) improve and enrich the community served by the college; (3) serve the handicapped and economically handicapped and economically disadvantaged; and (4) remedy past educational disadvantage and to develop student potential for regular study in the organized associate degree, transfer, or occupational programs offered by the community college (as defined in this subpart).

[NOTICE. This draft document has not been approved at any level of the Office of Education, or Department of Health, Education, and Welfare, and does not necessarily represent the policy of that agency. It is only an interim draft, and may not be relied upon as in any way authoritative by any person, institution, or agency seeking guidance for proceeding under Section 1202 of the Higher Education Act of 1965, as amended.]

(p) "State" means the several States of the Union, the Commonwealth of Puerto Rico, the District of Columbia, Guam, American Samoa, the Virgin Islands, and, for purposes of Titles VII-A and X-B of the Act only, the Trust Territory of the Pacific Islands.

(q) "State agency" means the agency designated or created by State law as the sole State agency responsible for the administration of occupational education or for the supervision of the administration thereof by agencies in the State, and designated pursuant to Section 1055 (a) of the Act.

(r) "State Commission" means the State Postsecondary Education Commission established or designated pursuant to Section 1202 (a) of the Act.

(s) "Statewide plan" means the statewide plan for the expansion or improvement of postsecondary education programs in community colleges, or both, required under Section 1001 of the Act.

(t) “Technical assistance” means the services and support provided or made available by the Commissioner to State Commissions to assist them in activities conducted under Section 1203 and Title X-B of the Act.

(u) "Technical education" means organized programs designed to prepare persons for entry employment or retraining for employment as semi-professional, technical, middle management, or specialized support personnel.

(v) "Technical institute" means an institution of postsecondary education which offers technical education in one or more fields to prepare the student for employment at a level between skilled workers and professional workers in engineering, scientific, or other technological fields.

(w) "Vocational education” means vocational or technical training or retraining (including field or laboratory work and remedial or related academic and technical instruction incident thereto) conducted as part of a program designed to prepare individuals for gainful employment as semi-skilled or skilled workers or technicians or subprofessionals in recognized occupations and in new and emerging occupations or to prepare individuals for enrollment in advanced technical education programs, but excluding any program to prepare individuals for employment in occupations generally considered professional or which require a baccalaureate or higher degree. Professional occupations are listed in these Regulations, 45 CFR 102.4 (c) (2).

(x) "Vocational school” means a school which is organized separately under a principal or director for the purpose of offering training in one or more skilled or semi-skilled trades or occupations. It is designed to meet the needs of high school students preparing for employment and to provide for upgrading or extension courses for those who are employed.

(y) The terms "establishment of," "to establish," "to be established," and "establishing" when used with respect to the State Commission mean either the creation of a new State Commission or the designation of an existing State agency or State Commission.

SUBPART B-ESTABLISHMENT, CERTIFICATION, AND MEMBERSHIP

§ 106.11 Establishment.

(a) Any State which desires to receive assistance under Section 1203 or Title X of the Act shall establish a State Commission which is broadly and equitably representative of the general public and public and private nonprofit and proprietary institutions of postsecondary education in the State including community colleges, junior colleges, postsecondary vocational schools, area vocational schools, technical institutes, four-year institutions of higher education and branches thereof. Such State Commission shall be established by the appropriate authority in the State empowered under State law to make such establishment. The State appointing authority shall provide a public announcement in the State of the legal authority and composition of the State Commission, including an invitation for comment addressed to the State appointing authority, the Commissioner and the Regional Commissioner. After an appropriate interval following such public announcement, the State appointing authority shall notify the Commissioner of the establishment of the State Commission in the following

manner:

[NOTICE. This draft document has not been approved at any level of the Office of Education, or Department of Health, Education, and Welfare, and does not necessarily represent the policy of that agency. It is only an interim draft, and may not be relied upon as in any way authoritative by any person, institution, or agency seeking guidance for proceeding under Section 1202 of the Higher Education Act of 1965, as amended.]

(1) It shall submit an original and two conforming copies of the materials required in Section 106.12 of this subpart directly to the Commissioner; and (2) It shall transmit a third conforming copy of such materials to the Regional Commissioner of Education for the region in which the State is located.

(b) The Commissioner shall formally recognize a State Commission for purposes of participation in Federal programs when such State Commission meets all requirements of this subpart. Should the Commissioner formally take exception to the decisions made by the State appointing authority with respect to these requirements and, in turn, make appropriate suggestions to the State appointing authority in terms of specific statutory requirements of Section 1202 of the Act and related provisions of Federal law, he shall defer recognition of the State Commission until the State appointing authority considers and satisfactorily responds to such exceptions and suggestions.

§ 106.12 Certification.

The State appointing authority shall certify the establishment of the State Commission by filing the following information in accordance with the procedures set forth in Section 106.11 (a) above:

(a) A formal certification from the appropriate State legal officer that the State Commission has been granted legal authority to act as such by the State; and

(b) An assurance of complicance with the "broadly and equitably representative" requirement of the Act. Such assurance shall include the following items of information:

(1) A resume for each Commission member, setting forth background information which is relevant to qualification for Commission membership; (2) A summary of the Commission composition and membership, showing the intended relationship of each position with the several representational factors included in the considerations set forth in Section 106.13 of this subpart; and

(3) A summary statement setting forth the basis upon which the State appointing authority concludes (and assures the Commissioner) that the Commission composition and membership is "broadly and equitably representative" in accordance with Section 106.13 of this subpart.

§ 106.13 Membership.

(a) The membership of the State Commission shall be broadly and equitably representative of the general public and public and private nonprofit and proprietary institutions of postsecondary education in the State, including community colleges, junior colleges, postsecondary vocational schools, area vocational schools, technical institutes, four-year institutions of higher education and branches thereof. In order to meet this requirement, the State appointing authority shall be guided by the following considerations:

(1) To be "broadly and equitably representative of the general public," the Commission membership must include a significant number of "public" members who are either residents of the State or employed in the State, who are considered by the State appointing authority to possess appropriate knowledge, experience, and ability for Commission membership, and who are not paid officials or employees of any postsecondary educational institution in the State.

(i) Persons serving as "public" members of existing State agencies, boards or Commissions may be eligible to serve as "public" members of the State Commission.

(ii) The State appointing authority should give careful consideration to including representation of consumer interests (e.g. students, parents, employers, labor unions, etc.) among the "public" members of the State Commission.

(2) To be "broadly and equitably representative of . . . institutions of postsecondary education in the State . . .", the Commission membership must include at least one member who is either a resident of the State or

[NOTICE. This draft document has not been approved at any level of the Office of Education, or Department of Health, Education, and Welfare, and does not necessarily represent the policy of that agency. It is only an interim draft, and may not be relied upon as in any way authoritative by any person, institution, or agency seeking guidance for proceeding under Section 1202 of the Higher Education Act of 1965, as amended.]

employed in the State, and who has an extensive and particular knowledge about, an official connection with, or a clearly definable relationship with, each of the following types of postsecondary educational institutions named in Section 1202 (a) of the Act and operating in the State: community colleges, junior colleges, postsecondary vocational schools, area vocational schools, technical institutes, four-year institutions of higher education and branches thereof. (Since these several types of postsecondary educational institutions are not mutually exclusive, and may in some cases overlap or be identical, if a given person qualifies according to the criteria set forth above to be representative of more than one of the above types of postsecondary educational institutions operating in the State, that person may be designated by the State appointing authority to represent more than one type of postsecondary eductional institution.) Moreover, the Commission membership must include appropriate representation of public and private nonprofit and proprietary institutions of postsecondary education operating in the State.

(i) To assure, insofar as possible, that such representation may be recognized and acknowledged by, and accountable to, the various postsecondary constituencies for which representation must be provided within the Commission, the State appointing authority should consult directly with the official State groupings of postsecondary educational institutions in the process of determining the postsecondary educational representation within the Commission membership.

(ii) Similarly, the State appointing authority should designate persons to represent the postsecondary educational institutions who reflect a diversity of perspectives, experiences and skills within the postsecondary educational community.

(iii) The State appointing authority should give careful consideration to including representation of elementary and secondary education, vocational education, and manpower development and training programs among the "education" members of the State Commission.

(b) Representation of all elements set forth in subsection (a) above must be substantive and real, within the State Commission itself, and not through representation in advisory committees or task forces of the State Commission.

(c) All Commission members must have equal authority to participate in the deliberations and/or decisions of the State Commission.

(d) All Commission members must be recruited and selected without discrimination on the basis of race, color, national origin, or sex. Further, affirmative action must be taken to include as part of the Commission women and members of racial and national origin groups which have not fully participated in developing the State's plans for postsecondary education in the past.

§ 106.14 Annual statement of composition and membership.

(a) The State appointing authority shall submit an annual statement to the Commissioner-anytime after the beginning of the fiscal year but no later than October 1-as to whether there have been any changes in the composition and/or membership of the State Commission. If there have been new members appointed. whether as additions or replacements, the State appointing authority is required to show that the appropriate public announcement has been provided in the State, to submit resumes for these members of the same type required for the original members, and also to indicate how the Commission as a whole continues to comply with the "broadly and equitably representative" requirement, in light of the new members appointed. This latter requirement will also apply in the case where one or more members have left a Commission and have not been replaced at the time of the annual submission.

(b) The Commissioner's role in extending recognition of the State Commission for purposes of participation in Federal programs, in view of changes in Commission composition and/or membership, shall be the same as that set forth in Section 106.11 (b) of this subpart.