fill that gap so that the consumers of this country would not

ed to unregulated natural monopolies.

Mr. ZEIFMAN. You mentioned the Environmental Protection Act. Aren't the civil rights laws in somewhat of a different category than the Environmental Protection Act in the sense that the basis for this committee's jurisdiction, for example, in civil rights, is found implicit in the Constitution and therefore any acts of Congress that are designed intentionally, expressly to implement basic constitutional provisions are in somewhat of a different category, are they not, than the statutory remedies that are not designed primarily for the implementation of the Constitution?

Mr. Gooch. It seems to me, sir, that our regulation is based on the Constitution just the same as civil rights legislation is based on the Constitution, because that is the only power that the Congress has, and the Congress has delegated to us the regulation of certain aspects of the Congress' constitutional power. The question is, having delegated some to us, do we thereby take it upon ourselves to enforce all congressional policies?

Now, you suggest that perhaps we should-in addition to the Attorney General, the Civil Rights Commission, the Equal Employment Opportunity Commission-that we should take on the responsibility under the 14th amendment, I suppose, or the fifth amendment.

I suggest to you, sir, that if the Congress will simply say that, if it will enact a statute, we can do it.

Mr. ZEIFMAN. Aside from the questions that have been considered so far as to whether or not you do have the authority, if you did have the authority and it were made clear, that you did have the authority and responsibility to condition licensing on equal employment practices, in your view would such a condition be an effective means of preventing discrimination and fostering equal opportunity?

Mr. GOOCH. Are you asking my personal opinion?

Mr. ZEIFMAN. Yes.

Mr. Gooch. Sir, I have approximately 80 lawyers with which to handle cases. There are something like 446 licensing cases. There are 26 curtailment cases pending, with 14 pipelines that are having to buy emergency supplies of gas, seven that cannot meet their firm deliveries. We have area rate proceedings. Not without substantial increases in personnel would we be able to handle the hearings or do the policing work at the present time.

Mr. ZEIFMAN. Aside from the question of whether you have the capacity to do it, would it be a good policy for Congress to require the licensing of a public utility conditioned on compliance with civil rights?

Mr. GoocH. Sir, since you are asking my personal opinion, I am happy to give it. I think that the issues should remain separate, that you should not have rolled into a rate case-when we are trying to set the lowest. just and reasonable rates, say, for electric power across an interconnection-that we should not be called upon to adjust rates in the light of employment practices.

Now, what would you have us do? Would you have us say to a licensee that because you are discriminating, we are going to order you to shut down all the hydroelectric projects in California until

you comply, and therefore have the electric energy in California unable to meet the consumer needs? Now, that is not a very practical alternative for us.

It seems to me that it is much better-the scheme that Congress has in fact enacted-of giving the power to the Attorney General, giving power to the Equal Employment Opportunity Commission, to proceed parallel, and if there are violations, have them corrected, with damages, with court injunctions, with criminal indictments, whatever it takes, and leave to us the duty and responsibility of trying to assure to the consumers in this country a safe and reliable supply of electric energy and natural gas.

Mr. ZEIFMAN. The powers that Congress have given to the Attorney General and the Equal Employment Opportunity Commission are powers which are generally remedial in the sense that they provide remedy for cases of actual discrimination. If it were the policy of Congress to take steps, preventive steps, so to speak, affirmative steps, to prevent discrimination from occurring in your area, would not an important preventative step be to condition licensing upon compliance with Federal statutes?

Mr. Gooch. It seems to me that that is a judgment that is up to Congress to make, as to what would be the most effective situation. It is true that a possibility is to condition licenses and certificates. If that is a possibility, it seems to me that that calls for the judgment of the Congress as to what is the effective way and if you want to have economic issues in the same context.

Now, if it is illegal-it seems to me it is illegal, it is already illegal to discriminate in employment-I don't quite understand what you would have us do-have a condition attached to a license that says it is illegal to discriminate in employment? It is already illegal. What would you have us do that would add to the existing law?

Mr. EDWARDS. Well, there were any number of suggestions made by the Department of Justice and by Deputy General Counsel Bardin as to what you might do. You have turned all of those down, is that right?

Mr. GoocH. Sir, if we get past the question of jurisdiction-now, let's review some of the options. One option was to require reporting by race of the utilities. Now, it is my understanding that that is already done. It is done not only to the EEOC, but it is also done to the General Services Administration who contract with these utilities, and therefore put them under the contract sanction with the Federal Government.

Now, it doesn't seem to me that we needed still another report form, even assuming that we had jurisdiction to get the same information that is already available, I could be wrong.

Mr. NASSIKAS. Could I join the constitutional argument for a moment, Mr. Chairman?

Mr. EDWARDS. Yes.

Mr. NASSIKAS. Whatever policy Congress should adopt, I am sure that you would be mindful of the possibility of conflicts between the fifth amendment upon which most all regulatory law is based, which states, in effect, that a utility must receive just compensation for property taken or dedicated to a public use or anyone, just compensation

for any property that is taken, and under that constitutional provision that any rate, for instance, would become confiscatory if it is below the just compensation level. So that I am not saying that this can't be done. I am saying that you could arrive at a situation where you might say that we want to be certain that everybody has equal rights under the law under another constitutional provision, but other people have property rights for which they must receive compensation. You might therefore find trying to enforce a policy of antidiscrimination by denying a license might result in several millions of dollars of taking the property without just compensation. That is speculative, of course.

Mr. ZEIFMAN. One more question. Is it your view that the Tower amendment to the 1964 Civil Rights Act which was offered on the floor of the Senate, was unnecessary, superfluous to the act as written because the act did give the EEOC exclusive jurisdiction over employment discrimination?

Mr. GOOCH. No, sir, I think there is some misunderstanding. In fact, in the P.G. & E. opinion of the Federal Power Commission, it recognizes the several avenues of remedies that have already been provided by the Congress. As I understood it, the question was whether the EEOC would be the exclusive remedy-and the Congress has decided that there will be several remedies: the Attorney General, private remedies with counsel being appointed by the district court, such action as taken by the Civil Rights Commission, and the Equal Employment Opportunity Commission. So it seems to me that there are at least four remedies currently provided by Congress.

Mr. ZEIFMAN. So you are not saying that the EEOC remedies are in fact exclusive?

Mr. Gooch. Certainly not.

Mr. ZEIFMAN. You are just saying that among the various spectrum of remedies there is no administrative remedy in the FPC?

Mr. GooсH. Yes, sir.

Mr. ZEIFMAN. Also it is your view, I gather, that you do not have the authority to issue the types of regulations that were suggested by the Department of Justice and that it is not a matter of of your choosing to exercise your discretion in the area and choosing not to under your discretionary powers, but that you do not even have the discretion to issue such regulations.

Mr. GOOCH. That is my view, sir.

Mr. EDWARDS. Mr. Keating?

Mr. KEATING. No further questions.

Mr. EDWARDS. Mr. Chairman, we don't have time to go into it, so perhaps you could respond by letter to another issue which has to do with the Indian tribes who have claimed that the action of the Federal Power Commission is permitting the diversion of water constitutes a taking of the water rights owned by the Indian tribes. There are presently pending several relicensing hearings in which Indian tribes have intervened in opposition to further licensing of projects using what is claimed to be water that rightfully belongs to the Indians. Now, we take no position on this contention, but given this issue, this committee would like to know, has the FPC incorporated into its review process for the relicensing hearings an examination of the civil rights implications of potential agency action in this area affecting the civil rights of the Indians?

Mr. NASSIKAS. I will have it—yes, Mr. Chairman, I will have a statement submitted for the record for you by the staff.

Mr. EDWARDS. Well, unless there are any further questions by the members or additional statements by the witnesses, we will adjourn these hearings, with the hope that you and ourselves, Mr. Chairman, will watch with great and keen interest, what the other regulatory agencies do with regard to this important subject where we find ourselves in some disagreement with the Chairman. We stand in agreement with the position taken by the Department of Justice.

Perhaps in the not too distant future we might discuss this again, because this committee does have responsibilities to make certain that the civil rights laws are enforced, and this committee-I can speak unanimously here-is terribly disturbed that the utility industry is discriminating in an inexcusable fashion against minorities.

We are sorry that you will take no responsibility and that you are leaving it up to other Government agencies to handle this.

Mr. Chairman, Mr. Gooch, gentlemen, thank you very much for appearing this morning.

Mr. NASSIKAS. Thank you, Mr. Chairman.

Mr. EDWARDS. Included in the record at this point will be the text of Mr. Nassikas' testimony and the attachments to which he has referred. (The material referred to follows:)

STATEMENT OF JOHN N. NASSIKAS, CHAIRMAN, FEDERAL POWER COMMISSION

Mr. Chairman: I welcome the opportunity to testify in regard to the subject matter of this hearing-the responsibilities of the Federal Power Commission in the area of civil rights with specific emphasis on the issue of regulation of employment practices of regulated industries.

Summary―There are problems associated with minority group employment in the regulated industries of this Nation, whether investor owned, publicly owned or cooperatively owned, just as there are in the non-regulated industries and in various units of government. I do not minimize them. They are real. In my Statement of January 30, 1970, in Hearings before the Subcommittee on Energy, National Resources, and the Environment, Committee on Commerce, United States Senate, 91st Cong., 2nd Sess., pp. 35-37, I discussed the general problem of minority employment in the utility industries and actions which the Commission had taken and continues to pursue in support of the full enjoyment of all civil and human rights by all persons regardless of race, creed or color. I stated in part, p. 36:

**** that this was a matter of extremely important national concern There are some companies * that have done some significant work in this

area. *** I think progress is being made. It is slower than it should be. * As I recognize the problem, I am mindful also that the Congress now has before it a number of legislative proposals for dealing with this general situation. I have reference to the various legislative proposals, including those concepts favored by the Administration, which have been advanced in regard to the equal opportunity provisions of the Civil Rights Act of 1964, 42 U.S.C. 2000e, et seq., and the responsibility of the Equal Employment Opportunity Commission, particularly in terms of remedies for wrongful acts. I note that H.R. 1746, as passed by the House September 16, 1971, and S. 2515, as it passed the Senate on February 22, 1972, each provide for judicial enforcement of equal employment remedies, at the initiative inter alia of the EEOC.

The subsequent portions of this Statement are directed at informing this Committee of the actions which the Federal Power Commission has taken, and is taking, in regard to civil rights and equal employment opportunities. By statute, we are an economic regulatory agency with defined, and therefore limited, compulsory authority within which to act administratively. We are not the chosen instrument of the Congress for the administration of equal employment laws or any other types of labor regulations. We do have certain specific responsibilities in the area of equal rights. We are enforcing them. Also, where we cannot

compel corrective actions, we are cooperating with all agencies of government which do have a direct role.

Actions-We must, and do, recognize the civil rights of all persons whom we employ at the Commission, an agency of the Federal Government created initially by the Congress in 1920, 41 Stat. 1063. Reservedly, because I know much more can be accomplished in time, nevertheless, I express with pride, the employment progress which we, the Federal Power Commission, have regarding minority group hiring. On August 1, 1969, when I joined the Commission as Chairman, we were last among the major Federal regulatory agencies in minority employment ratios. Today, we are first based upon the proportion of minority group persons employed to total employees. In addition, we have increased the level of female professional and technical employees by 63%. I discuss factual details in a later portion of this Statement and in Appendix A hereto, a memorandum prepared by the Commission's Executive Director. Our actions are consistent with the requirements of Executive Order No. 11478, August 8, 1969, 34 F.R. 12985.

We must, and do, recognize the civil rights of all persons whose interests may be affected as users of Commission licensed multi-purpose hydroelectric facilities, e.g., power production, navigation, recreation and other uses.

Our authority to act in the multiple use of reservoirs area has been demonstrated, and springs from the comprehensive use of resources test which the Commission applies when it licenses hydroelectric projects under the Federal Power Act, 16 U.S.C. 803 (a). See Commission Order No. 341, Amending Regulations Under the Federal Power Act, Prohibition of Discrimination at Recreational Facilities at Licensed Hydroelectric Projects, 37 FPC 775 (1967). In a subsequent portion of this Statement I cite to the Commission's implementing rules and regulations. Appendix B hereto describes, in question and answer format, the procedures and results of this type of Commission activity. The questions are from among a number which were propounded to me by the Chairman, United States Commission on Civil Rights on September 14, 1971. I answered Father Theodore M. Hesburgh on October 8, 1971. Appendix B is an update of those answers.

In a third area, general employment practices of electric and gas utilities, our actions have been those of consultation and persuasion to secure employment rights for minority groups. We have been advised by our General Counsel that we lack delegation of Congressional authority to affirmatively regulate employment practices of electric or gas entities. This advise and supporting reasoning are set forth in restated memoranda format, Appendix C to this Statement. It has been applied in three litigated cases before the commission in which we were asked to affect, or control, utility employment practices, directly or indirectly. I discuss those cases later in this Statement.

To understand our action, let me briefly note the nature of our delegated legislative authority.

Power and Gas Acts-The Federal Power Commission is charged by the Congress with the administration of two economic regulatory arrangements. Under one, the Federal Power Act,' passed in 1920 and amended substantially in 1935, the Commission regulates non-federally owned hydroelectric projects which use the water power potential of the Nation's rivers and streams, chiefly the major river systems. Also, it regulates, under this Act, the interstate bulk power supply operaions or wholesale for resale rates and services of investor owned utilities, one to another, or from those systems to publicly owned utility systems (Federal, state, municipal) or cooperatively owned utilities. The Commission does not have economic regulatory authority over the bulk power or interstate operations of publicly owned systems or cooperatively owned utilities. Retail electric service regulation is a state matter. The operations of public systems and cooperatives are subject to state or local regulatory controls in some states.3

116 U.S.C. 791 (a), et seq.

There are approximately 400 investor owned electric utilities, 2.100 publicly owned utility systems and 1,000 cooperatively owned electric utilities throughout the United States.

3 See 16 U.S.C. 824(f): Dairyland Power Cooperative, et al., 37 FPC 12 (1967): Salt River Project v. Colorado-Ute Electric Association, Inc., 37 FPC 68, 495 (1967), affirmed sub nom. Salt River Project v. FPC. 391 F. 2d 470 (CADC, 1968) cert denied sub nom. Arkansas Valley G&T, Inc. v. FPC, 393 U.S. 857 (1968). See also my statement in Hearings before the Subcommittee on Communications and Power, Committee on Interstate and Foreign Commerce, House of Representatives, on H.R. 5277, 92d Cong.. 1st Sess.. pp. 443-4 ad accompanying Appendix K. (May 6, 1971), for a listing of these various types of regulation.