ning groups in formulating its plan for development and utilization of the optimum output of the project, including the disposition of excess power and energy from the project to others than the applicant and the terms of any such disposition; (2) the nature and extent of applicant's activities in correlating the generating and transmission capability of the project with the needs and resources of its system and of other interconnected systems. Such statements shall set forth full details of the load, generation, and time periods employed. With respect to information on dependable capacity required in Exhibit I, applicants shall furnish a summer and winter load curve either on a weekly or monthly basis, showing the contribution that the project would make to the dependable capacity on the applicant's system as well as the regional system load on which it would or could be used and indicating any change in dependable capacity of the project with load growth at appropriate intervals from and after the date of the application or initial operation.

(3) Section 4.50 is amended to provide an exception to the requirement of Exhibits T and U with respect to applications for certain constructed projects by adding the following paragraph to section 4.50:

Exhibits T and U. These exhibits shall not be required for applications for original licenses on constructed projects.

(4) Section 4.31 is amended to read as follows:

$4.31 Acceptance for Filing or Rejection of Applications

When an application which conforms to the requirements of § 1.15 of this chapter is received, it will be given a filing number. Notice of receipt thereof and filing number given thereto will be furnished applicant and notices will be given in accordance with the requiremnts of section 4 of the Act (49 Stat. 839; 16 U.S.C. 797), § 1.37 of this Chapter, and the Fish and Wildlife Coordination Act 48 Stat. 401, as amended 16 U.S.C. 611 et seq. Notice will also be given to the appropriate office of the Department of the Interior as to the public lands affected, if any, so that withdrawals from entry may be recorded, unless such action has been taken in connection with a preliminary permit. An application in order to be acceptable for processing must contain the information required pursuant to §§ 4.40 through 4.51, inclusive, as well as, any additional information required, as appropriate, except that; (a) Exhibit A may be incorporated in an application by reference where on applicant files applications for several projects one of which already contains an Exhibit A or in any case where applicant has filed an Exhibit A within ten years preceding the filiny of the application and (b) for unconstructed projects final Exhibits F and K may be filed subsequent to the issuance of the license as prescribed therein.

An applicant may be required to furnish additional information required pursuant to these sections at such time as the Secretary directs. Failure to furnish the required information will constitute grounds for rejection of the application by the Secretary as provided by § 1.14 of this Chapter. The Commission may require as a condition of lisence that the licensee furnish additional or revised exhibits by a specified time. Failure to furnish such information within the time specified, or an extension thereof granted by the Commission, shall constitute a violation of the license and cause for action under section 26 of the Federal Power Act.

(D) These amendments shall become effective September 2, 1969.

(E) The Secretary shall cause prompt publication of this order to be made in the Federal Register.

By the Commission.

(SEAL)

GORDON M. GRANT, Secretary.

APRIL 17, 1969.

Memorandum to: The Chairman.

From: Deputy General Counsel.

Subject: Recommended Civil Rights Activity.

Urgency: Information.

Attached is a memorandum addressed to me from Robert A. Jablon suggesting various actions which we might take regarding civil rights. I recommend the following:

(1) The Commission would issue a policy statement that it will be Commission policy not to issue (a) hydroelectric licenses, particularly in relicensing cases, or (b) certificates of public convenience and necessity to firms having discriminatory employment practices or to facilities to be built or operated by contractors or subcontractors who discriminate. The following steps would help make the policy effective and would place maximum reliance on civil rights agencies to help call trouble cases to this Commission's attention.

The license and certificate regulations would be amended to require all applications to contain (or incorporate by reference to a prior filing) a statement of intended compliance with equal employment policies and should set forth what steps the company is taking to further such equal employment policies. Applicants should state whether any adverse findings have been made against them or whether any actions are pending against them. Adverse actions should include actions brought by governmental bodies or private parties and should include complaints before or actions taken by administrative bodies.

In addition, applicants might be required to state what state and Federal agencies have been informed of the proposed applications and specifically whether local, state or municipal equal employment commissions and the Federal Equal Employment Opportunity Commission, Civil Rights Commission, Office of Federal Contracts Compliance and the Civil Rights Division of the Department of Justice have been so informed. Applicants should be permitted to make a statement explaining any actions taken against them or any comments adverse to granting the application. This proposed requirement would inform the Commission when there is reason to believe applicants may be discriminating. (It is patterned upon current practices in granting licenses under Part I of the Power Act where the Commission requires applicants to advise appropriate state and Federal agencies of applications relating to their respective jurisdictional responsibilities. E.g., Regulations Under the Federal Power Act, § 4.41, Exhibit S (Hydroelectric License Applications-Exhibit Relating to Protection and Enhancement of Fish and Wildlife Resources, Docket No. R-303, 35 FPC 1038, 31 F.R. 8779 (1966).

(c) The Commission could receive notice of violation of this Commission's proposed equal employment policies through allegations of interested potential interveners or interested parties. (See Recommendation #3).

(d) We should ask the Equal Employment Opportunity Commission whether they would institute routine comparisons of applicants' employment (i.e., racial profile) data with others in the industry and with others within relevant standard metropolitan areas for prima facie indications of discrimination as a step in our licensing or certificate processes or both. These proposals coincide with the Federal Communication Commission's notice that nondiscrimination is a "sine qua non" for license renewal. However, it goes beyond the F.C.C. announced policy in suggesting a mechanism for informing the Commission of potential discrimination. In re Petition for Rule Making to Require Broadcast Licensees to Show Non-Discrimination in Their Employment Practices, 13 F.C.C. 2d 766, 33 F.R. 9960 (1968). See the letter of Clifford L. Alexander, Chairman of the Equal Employment Opportunity Commission, August 20, 1968, attached to this memorandum as Appendix B. If, for some reason, it is not feasible for the EEOC to itself check applicants' employment records, as suggested above, the Commission might consider taking an additional step towards insuring compliance with its announced policy. In coordination with the Equal Employment Opportunity Commission, our staff might routinely review the confidential racial profile data on file with that Commission before granting applications and further investigate applications from companies giving clear prima facie indication of discrimination. Alternatively, our Commission might require the independent filing of such data either at the time of making application or annually.

(2) (a) The Commission should issue a notice of rule making setting forth its intention to condition all licenses and certificates of public convenience and necessity to bar employment discrimination and to require non-discrimination clauses in major contracts relating to the construction or operation of FPC licensed or certificated facilities. Requirements covering contractors can be modeled after Executive Order 11,246, 30 F.R. 2319 (September 28, 1965), 33 F.R. 7804 (May 28, 1968). Such clauses should be worded to vest private contractual rights in third parties to secure their inforcement. Cf. Lawrence v. For. 20 N.Y. 268 (1859). Licensees and certicate holders would be primarily responsible for compliance of the non-discrimination provisions by contractors and subcontractors.

(b) The Commission might also require applicants for licenses and for certificates of public convenience and necessity to list the names and addresses of proposed major contractors and subcontractors in their applications. In cases where these are not known at the time of the filing of license or certificate applications, applicants should file such information periodically (e.g., quarterly). We should ask the Equal Employment Opportunity Commission whether it would make comparisons of contractors' and subcontractors' employment data similar to the requested comparisons of applicants' data. (See 1(d) above.) This would give us information whether applicants are fulfiling their obligations to contract with firms who are not discriminating and whether contractors and subcontractors are living up to their contract obligations with license and certificate holders.

(c) Where not otherwise required, licensees, certificate holders and their contractors should be obligated to post equal employment notices at places of hiring. Accord, Petition for Rule Making to Require Broadcast Licensees to Show NonDiscrimination in Their Employment Practices, 13 F.C.C. 2d 766, 33 F.R. 9960 (1968).

(3) A letter should be sent to every state public service commission, to every state anti-discrimination commission, to the Office of Economic Opportunity for distribution to OEO funded groups providing legal services for the poor, to the Equal Employment Opportunity Commission, the Civil Rights Division of the Department of Justice, the Office of Federal Contracts Compliance and to private civil rights organizations informing them of our activities in this area and inviting their aid or intervention in furthering civil rights goals. Recipients of such letters should be specifically asked whether they would be interested in receiving notice of applications or hearings and should be supplied such notice, if requested.

(4) The Bureau of Natural Gas and the Office of General Counsel should investigate the feasibility and desirability of rate designs which would favor either customers in certain "poverty" (e.g. "model city") areas or residential customers in such areas. (Compare Northern Natural Gas Co., Docket No. RP69-5, February 11, 1969, Initial Decision allowing "promotional" rates). If adopted, such rate design would have to be in accordance with policies adopted by state commissions and local utilities to insure lower rates were passed on to intended beneficiaries. Consideration of rate design policies benefiting the urban poor has been advocated by Judge J. Skelly Albright, Utilities and the Urban Poor, pp. 7-9. (Address to the Federal Bar Association Briefing Conference, Toward a Comprehensive National Energy Policy, Part II, December 4, 1968). This proposal deserves specific attention; possibly it should be explored with the National Association of Regulatory Utility Commissioners (NARUC). However, because of its potential for rare discrimination, it needs further study and probably should not be generally adopted without being first examined in the context of a specific proposal in an individual case.

The attached memorandum, Civil Rights-Poverty Role of the Federal Power Commission, indicates that legal action or investigations have been taken against Duke Power Company, Georgia Power Company, Dan River Mills and Sinclair Refining Company. The Commission should consider the pendency of such allegations and either investigate their employment practices or design a condition subsequent before issuing licenses or permanent certificates to such companies. (5) The above assumes continuing coordination between the Federal Power Commission, Equal Employment Opportunity Commission and Department of Justice and other federal and state agencies concerned with civil rights. F.P.C. action might be predicated upon findings of the E.E.O.C. or action taken by the Department of Justice: conversely, we should wish to forward complaints and evidence of discrimination to the E.E.O.C. Compare In re Petition for Rule Making to Require Broadcast Licenses to Show Non-Discrimination in Their Employment Practices, 13, F.C.C. 2d 766, 33 F.R. 9960 (1968, item 14).

We are preparing a draft notice of rulemaking for agenda consideration. DAVID J. BARDIN, Deputy General Counsel.

Appendix A-Memorandum, Civil Rights-Poverty Role of the Federal Power Commission (Robert A. Jablon)

Appendix B-Letter of Clifford L. Alexander, Chairman, Equal Employment Opportunity Commission to Rosel H. Hyde, Chairman, Federal Communications Commission, August 30, 1968

Apendix C-Memorandum, Extent of the Commossion's Power to Condition its Granting of Licenses and Certificates to Further Civil Rights Policies (Robert A. Jablon)

Appendix D-Department of Commerce, Nondiscrimination in Federally-Assisted Programs of the Department of Commerce-Effectuation of Title VI of the Civil Rights Act of 1964, 15 C.F.R. § 8

APPENDIX A

MARCH 18, 1969.

Memorandum to: Deputy General Counsel.
From: Robert A. Jablon.

Subject: Civil Rights-Poverty Role of the Federal Power Commission.
Urgency: Information.

The purpose of this memorandum is to suggest civil rights action which may be taken by the Federal Power Commission and by related administrative agencies. Of course, to the extent that the FPC can bring about low utility rates it is having on civil rights effect. However, unless particular attention is given, agency actions may inadvertently work against the needs of "ghetto" constituents. Because of their interrelated nature, throughout this memorandum "civil rights" and "poverty" problems have been treated as a joint problem.

Before discussing more specific actions which the FPC or other administrative agencies can take in the civil rights-poverty area, the importance of creating institutional pressures to advance civil rights should be stressed. There are already various pressures on most public agencies to either ignore civil rights problems or to reach decisions which will hinder civil rights progress. The most obvious pressure is political objection by its opponents. However, there is the additional factor that most actions which administrative agencies can take will either cost regulated companies or their customers money or will deprive company employees or customers of employment or rate advantages. Thus, it is necessary to create counter pressures to bring civil rights problems to agencies' attention, to force agencies to deal with those problems and to generate innovative thought in dealing with them.

The FPC like many other agencies deals largely in litigation. A general directive to all staff counsel that the potential impact of FPC activities on ghetto areas and in the field of civil rights is of concern to the Commission and that issues with regard to these subjects should be raised by staff in FPC cases in and of itself would lead to the litigation of heretofore unexplored issues. In a contested pipeline case the mere raising of issues of possible discriminatory practices by applicants or proposed contractors can bring publicity and pressures for correction by the industry. Furthermore, once the Commission staff took action in raising civil rights related issues, this would tend to bring possible outside intervention and support.

The Commission should do everything possible to encourage intervention by civil rights oriented agencies or groups in Commission cases. The Federal Power Commission has unquestionably become one of the more effective administrative agencies. In this, appointments to the Commission and to the Commission staff have been important, but outside pressures cannot be ignored. Thus, looking back, it cannot be denied that the efforts of state public service commissions and of various local distributors have had a salutary effect in establishing effective producer regulation. Such outside interest and intervention and even forcing of court review of our actions inevitably creates pressures on staff not to be "shown up" by the intervenors. The possibility of court review by other than regulated companies undoubtedly makes it easier for the Solicitor's Office to defend Commission actions as being the product of considered judgments based upon the clash of a broad range of interests; and due to intervention Commission actions do in fact become responsive to a broader range of interests. Moreover the presence of intervenors supplies the Commission with a fertile field for innovative ideas (e.g., the "two-price" system of area rate regulation) and brings to Commission hearings the product of outside resources which the Commission alone could not afford.

In the field of potential FPC civil rights activity, it would serve a particularly useful purpose if we were to make a special effort to invite present institutional litigators, such as the various state public service commissions, as well as new ones, to raise and contest issues which they might deem relevant. Examples of such potential litigators might include state antidiscrimination commissions,

unions, private civil rights organizations, and various public or private legal aid agencies. With regard to outside representation, obtaining either direct intervention or submissions from Federal agencies working in the area should be particularly helpful. For example, the Equal Employment Opportunity Commission and the Office of Federal Contract Compliance would have access to employment data which might make their views extremely valuable.1 Similarly, the civil rights division of the Department of Justice could presumably intervene in our hearings. Such interagency cooperation would help the more directly related civil rights agencies in obtaining "access points" to companies which we regulate. This is not dissimilar to current intergovernmental intervention or testimony now presented at our hearings such as in hydroelectric licensing cases. Of course, the spector of the NAACP or CORE intervening in our hearings to litigate the employment practices of participants may be disruptive, but it is questionable whether it would be more disruptive than the initial period when the Public Service Commission of New York and the United Gas Improvement Company of Philadelphia were intervening in producer hearings. The Commission might not ultimately agree with intervenor positions, but such positions would be raised and an effective mechanism would be provided for involving the Commission in these areas and establishing the areas and limitations of Commission action. Thus, it is suggested that the Office of Public Information send monthly letters to interested civil rights and poverty agencies and groups informing them of our activities and of the initiation of new hearings. We should specifically invite their participation. Compare Recommendation for People's Counsel, Presented to the Administrative Conference by Lee C. White, Chairman, Committee on Rulemaking (December 10, 1968).

In a more specific vein, the Commission should act to refuse certificates or licenses to firms which are discriminating in their employment practices or to facilities which would be built with discriminatory labor; similarly, it should condition licenses and certificates to bar discrimination in accommodations (e.g., rest rooms). The lack of equal employment opportunity is one of the prime grievances of minorities. The recent study by the Equal Employment Opportunity Commission indicates that the utilities industry, including natural gas pipeline transmission companies, are woefully deficient in this regard. EEOC Office of Research and Reports, Employment Patterns in the Utilities Industry, 1966-1967 (June, 1968).

The power of the Commission to attach conditions outlawing employment or other racial discrimination as an adjunct of its licensing certificating functions may be exercised in a number of ways. At the least, however, it should be said that such general conditioning power would apply where it could be demonstrated that discriminatory practices would tend to undermine the ability of regulated companies to adequately perform their services. Given the generally disruptive effects shown to result from discrimination, such impact could probably

1 The Equal Employment Opportunity Commission statistics are confidential. It would appear that without company waiver they could not be directly used in our hearings. 42 U.S.C. Sec. 2000c-8(e). However, there should be no legal bar to the EEOC making general recommendations or appraisals based upon reported data. It should be noted that some EEOC data is broken down to the plant level and that the EEOC maintains comparative statistics on general employment of minorities by standard metropolitan area. Moreover, it is not absolutely certain that the EEOC statistics could not be used in FPC hearings. With certain strictures, for example, we can use Federal Income Tax data which is also deemed confidential 26 C.F.R. § 301. Moreover, EEOC data was used at the May 1967 United States Civil Rights Commission Hearings. The EEO-1 Form was introduced by the Commission's Deputy General Counsel as evidence, was quoted to show the number of minority employees at the witnesses plant and was published in the appendix of the hearing transcript. Hearings before the U.S. Civil Rights Commission, San Francisco, May 1-3, 1967; Oakland, May 4-6, 1967, p. 571. Appendix p. 1005. Exhibit 30. Staff could request FPC regulated company waiver of the confidentiality of EEOC filings. If this were refused, we could undoubtedly ask for reporting of similar data as a proxy for the EEO-1 Forms. The FPC has full access to EEO-1 Forms for non-public use and may freely publicize composited EEO-1 data. An example of E.E.O.C. participation before an administrative tribunal is provided by St. Louis-San Francisco R'y Co., Discontinuance of Trains Nos. 1 and 2 Between St. Louis, Mo. and Oklahoma City, Okla., 330 I.C.C. 619 (1967, Finance Docket No. 24383). See letter to Steven M. Shulman, Chairman E.E.O.C., from Thaddeus W. Forbes, Director-Finance, I.C.C., filed January 9, 1967, allowing participation. The E.E.O.C. argued before the Interstate Commerce Commission that train service should not be discontinued when such discontinuance would have an unequal impact on Negro employees and that the Interstate Commerce Commission was duty bound to consider the policy of Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e, et seq. Memorandum of the Equal Employment Opportunity Commission (March 15, 1967). The I.C.C. rejected the contentions of the E.E.O.C. on the merits. Supra, 330 I.C.C. 619, and see letter of Thaddeus W. Forbes, supra.