nautics Board has not denied its jurisdiction over employment discrimination in the air transport industry.

Why does the Federal Power Commission alone maintain that it has no jurisdiction over the employment practices of the regulated industry? Why are you by yourself in the position, Mr. Chairman? Mr. NASSIKAS. Well, I am not entirely sure that these actions that you note necessarily put the Federal Power Commission's position as being alone, as you have described it. Those are your words, not mine,

sir.

I have practiced law for about 20 to 25 years. I try to interpret the law as I see it. I don't believe that I should exceed the authority that Congress has delegated to me by utilizing powers that have not been assigned to me. If they were assigned, I would exercise them. Now, this is a congressional policy; it is not my policy. I have interpreted statutes for many, many years, both as deputy attorney general of the State of New Hampshire and also in private practice, and legislative intent and legislative history is a question of reading the entire history of the statute, reading the debates so far as they may be reported on the floor of the House and the Congress, and then arriving at a determination, and reading the language of the statute and seeing whether or not there is a power delegated. The statute does not delegate it. The language of the statute does not delegate the power to us.

Mr. EDWARDS. Mr. Chairman, have you any idea how impossible it would be for Congress to have to write equal employment requirements into every statute? When we passed the 1964 Civil Rights Act, we were very careful to tie the rights guaranteed therein to the Constitution so that it would be universally enforceable and applied to all the laws of the country. Don't you think that you are asking an awful lot of Congress to have to specifically write into every law that we passMr. NASSIKAS. No, sir. May I tell you why?

Mr. MCCLORY. Will the Chair yield for a question? Could I just inquire of the Chairman what is the nature of the enforcement authority that you feel the Federal Power Commission has? Does it relate to the subject of withholding the granting or continuing of licenses? or does it consist of going into the Federal courts enforcing equal employment opportunities as the EEOC would have to do? or does the FPC have authority to issue cease-and-desist orders administratively? or exactly what is the enforcement authority that you feel that the Congress has granted to the FPC in this area? I am a little vague on that.

Mr. EDWARDS. The Department of Justice made a number of suggestions, Mr. McClory, and it is a part of the record in the appendix of the Chairman's testimony.

Also the Deputy General Counsel of the Federal Power Commission made a number of suggestions, for example, that the Commission would issue a policy statement that it would be Commission policy not to issue hydroelectric licenses, particularly in relicensing cases, or certificates of public convenience, et cetera, to contractors or subcontractors who discriminate.

Mr. MCCLORY. If the gentleman would yield, could I just ask one more question? Has the Congress granted any such authority to issue such rules or regulations?

Mr. EDWARDS. In the Civil Rights Act of 1964 Congress established a national policy against employment discrimination, and when Federal regulatory agencies have taken it upon themselves to enforce title VII, the courts have never denied them this authority or prohibited the affirmative action taken by agencies.

Mr. KEATING. Mr. Chairman, if I may

Mr. EDWARDS. Yes, Mr. Keating.

Mr. KEATING. By reverse order, has the court said that these agencies affirmatively have the power to act even though Congress has not explicitly conveyed such authority by statute?

Mr. EDWARDS. They haven't.

Mr. KEATING. Are you indicating that the courts have instructed them to do something that Congress has not instructed them to do? Mr. EDWARDS. Mr. Keating, we will furnish for the record cases where the courts have so indicated. For example, in the case of Scenic Hudson Preservation Conference v. FPC, 354 F. 2d 608 (2d Cir. 1965); Cert. denied sub. nom, Consolidated Edison Co. of New York v. Scenic Hudson Preservation Conference, 384 U.S. 941, 86 S. Ct. 1462. (1966); Scenic Hudson Preservation Conference, v. FPC, 40 L.W. 2277 (2d Cir. Oct. 22, 1971) affirming order on remand. The circuit court of appeals compelled the Federal Power Commission to consider, in granting the license for a pumped storage hydroelectric project, the impact of the project on fish. The court stated: "In this case, as in many others, the Commission has claimed to be the representative of the public interest. This role does not permit it to act as an umpire blandly calling balls and strikes for adversaries appearing forth. The right of the public must receive active and affirmative protection at the hands of the Commission."

And I believe that the evidence indicates that when the regulatory agencies take affirmative action pursuant to title VII of the Civil Rights Act of 1964, the courts will support them.

Mr. KEATING. Mr. Chairman, I am not as convinced of that as you are. I think we should review those decisions closely to see precisely what they do hold.

Mr. EDWARDS. Let me refer my colleague to the letter from the Department of Justice, dated September 17, 1971, written to Mr. Gooch, and the letter refers to Mr. Gooch's request that the Department of Justice give its views over the FPC's jurisdiction over employment practices of licensed or regulated companies:

In our opinion, under the relevant statutes, the Commission has ample authority to issue regulations barring employment discrimination by natural gas companies regulated by the Commission and by electrical companies holding hydroelectric plant licenses.

Mr. McCLORY. Well, if the chairman would yield just once more, I would like to make just one statement. I think it would be very easy for the Congress to positively and specifically grant the authority that is said to be implied in some general policy or some general statement or some general language of the Constitution and various statutes, and to specifically grant this authority if we want the Federal Power Commission to investigate and enforce and perhaps, in my opinion, to duplicate activities that we have specifically designated and authorized other agencies to perform.

Mr. KEATING. I subscribe somewhat to what Congressman McClory has said. We are asking these people to do something more than what Congress has authorized them to do. I think Congress has a responsibility in this to go further, if necessary, and I am not sure that it is quite fair to say, well, you should do more than we said because we intended that you do more, although we really didn't say so. I think this is the thrust of what we are talking about in this area-rules, regulations, instructions and demands are made without instances of constructive ideas and thoughts in accomplishing these ends, and I think maybe the Congress has failed in some of its responsibilities to really achieve what needs to be achieved in the country today.

Mr. EDWARDS. Let me say, Mr. Keating, that is the position of the Federal Power Commission. It is not the position of the Department of Justice nor of the other regulatory agencies, and a majority of them are the major ones, at least, have proceeded or are in the process of proceeding to do what they can to implement title VII of the Civil Rights Act of 1964.

Mr. Wiggins?

Mr. WIGGINS. Thank you, Mr. Chairman. I apologize to the chairman for being late. I was unavoidably late, but I had previously read your statement. I have questions and comments and observations and I really hardly know where to start.

I note at the outset that you have expressed a clear willingness to comply with the law, as that law is clearly interpreted and understood. I am not aware than anyone has suggested that regulatory agencies should have a greater power to enforce title VII than EEOC has. And so I might initially start with the question of whether EEOC has the power that it has been suggested that you have, sir. We have some recent experience in that, since the Congress is still debating the power of EEOC, and the issue there is whether EEOC shall be able to proceed administratively to end acts of discrimination or whether it must go to court to do so.

Implicit as I understand it, Mr. Chairman, in your suggestion is that regulatory agencies have a duty to proceed administratively to end acts of discrimination. Your basic power is to withhold licenses and to attach conditions to those licenses, and I think that if that power were vested in the EEOC then the debate in the Senate over the last few weeks would have been meaningless.

That is an initial comment. I can't believe that Congress intended by inference to grant to you greater power than it has explicitly denied to the EEOC.

Now, I gather that it is your view that if you were to take an active role in the enforcement of title VII, in addition to your other duties, it would be duplicative of the Equal Employment Opportunity Commission's. If you were to do so, Mr. Chairman, would that interfere with your regulatory functions?

Mr. NASSIKAS. First, I believe, as I have stated, that we don't have the authority to administer the EEOC Act. As to our regulatory functions, it would seem to me that it would be irresponsible of me, as Chairman, and irresponsible of the entire Commission if we were

to use our economic sanctions, which are very formidable, to try to compel compliance with another statute that Congress has not assigned

to us.

I can only act responsibly, despite my belief in the civil rights causes and the equal employment opportunities. I must do what Congress has delegated to me. I would be acting ultra vires of what you delegated to me, Mr. Wiggins.

Mr. WIGGINS. Well, I would like a more explicit anwser to the question. What would be the impact of your agency if you were to do that which our chairman has suggested is your burden to do?

Mr. NASSIKAS. If Congress were to assign responsibility to us and say we should administer the Civil Rights Act to be sure that there is not a pattern of discrimination and all the rest of it, this could be done. We could do it very ably, I am sure of that, in the course of time. We would need additional personnel, substantially greater personnel. Our present responsibilities are large. We regulate the entire gas industry, except for local distribution, and the electric power industry. We deal with thousands of companies.

Mr. WIGGINS. Are you equipped to do so now?

Mr. NASSIKAS. I don't believe so. Administratively, I don't believe that we could handle this task as the agency is presently staffed. If we had the jurisdiction, we could start it. We could start through rulemaking proceedings and ask that reports be filed with us as to what the pattern is and then determine it. It would be an expensive and exhaustive effort. We could only start on it. I don't think we could do an effective job with the personnel that we now have, sir. Mr. WIGGINS. Let us suppose that in the course of your normal regulatory functions you come upon evidence of discrimination, what do you do?

Mr. NASSIKAS. If we come upon evidence of discrimination in the use of recreational opportunities at a licensed project, we have regulations, which I cite in my principal statement. They govern that and are designed to prevent that kind of discrimination from going on. We have inspections that are made of those projects by our staff throughout the United States. These are on a spot basis, of course. Under our regulations there are public notice and posting rules concerning the projects use.

If we get to the question of employment discrimination allegations by a licensed applicant we have the matter which the Commission decided-in the Pacific Gas & Electric case, which I cite in my principal statement. We there concluded that the Commission is without jurisdiction to regulate employment practices of a particular company. We decided, as we stated in our opinion, that we should not there enter into a requested hearing. We denied an evidentiary hearing request because we felt that we did not have the power to carry it out. Mr. WIGGINS. Let me summarize what I understood you to say. Mr. NASSIKAS. This does not mean that we would ignore conditions. If we have any evidence of any criminal action of any evidence of, let's say, violation of standards, we would refer the matter to Justice or we would refer the matter to the Equal Employment Opportunities Commission. We wouldn't just simply sit there and say, well, we don't have any power. We would act responsibly; but as a matter of legal

jurisdiction and comity, the Commission must recognize competent jurisdictional authority.

We would act just as in the case of an antitrust violation, for example by referring the matter to Justice.

Mr. EDWARDS. Mr. Chairman, I refer to the City of Pittsburgh case, back in 1956, where the court held that the broad national policy embodied in the Clayton Antitrust Act applied to the FPC despite the fact that neither the act nor its legislative history gave the FPC any particular enforcement responsibilities. I would appreciate your views as to why the antitrust policies of the Clayton Antitrust Act should be deemed a more important national policy than the policy of nondiscrimination in employment embodied in the civil rights laws in the decision regarding whether public convenience is served in granting licenses under the Federal Power Act or Natural Gas Act. Mr. NASSIKAS. I think we are mentioned

Mr. EDWARDS. As you said yourself, you would refer employment discrimination cases to the Department of Justice.

Mr. NASSIKAS. We are mentioned in section 7 of the Clayton Act specifically, and mention is made in our own organic statutes with reference to antitrust violations, sections 10(h) of the Power Act and section 20 (a) of the Gas Act. There is an obligation under the administration of these acts for reference of matters concerning the antitrust laws to the Attorney General, sections 26, 314, of the Power Act, section 20 (a) of the Natural Gas Act.

Mr. EDWARDS. Well, in the City of Pittsburgh case, as I recall, the broad national policy with regard to antitrust was held to apply to the Federal Power Commission. Why would the antitrust policies of the Clayton Antitrust Act be a more important national policy than nondiscrimination in employment?

Mr. NASSIKAS. I don't believe, Mr. Chairman, that we can put this in terms of relevant importance, but rather in terms of what Congress has delegated. Let me call your attention here to the Federal Power Act. This is section 10 (h):

That combinations, agreements, arrangements, or understandings, express or implied, to limit the output of electrical energy, to restrain trade, or to fix, maintain, or increase prices for electrical energy or service are hereby prohibited.

Then there is reference in the Clayton Act itself. I don't have the Clayton Act with me, but I would like to supply something for the record on that, if you will permit me to-as to why we have the authority as delegated by Congress to refer an antitrust violation to Justice, and why we don't have such an express delegation under another national policy, under equal employment opportunities.

But, as I stated earlier, despite the fact that there is not an express delegation, I would consider it my duty, in the event a violation was called to our attention in a proceeding before the Commission, to call it to the attention of Justice if they could do something about it, and I would do so.

In the Clayton Antitrust Act, I have now section 7, it says, "Nothing contained in this section"-well, I would like to supply something for the record. This is a legal question.

Mr. WIGGINS. Mr. Chairman, I now refer to the licensed projects to which you referred, and you indicated that with respect to those proj