File No. 70-9153
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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POST-EFFECTIVE AMENDMENT NO. 3
TO FORM U-1 APPLICATION
UNDER THE
PUBLIC UTILITY HOLDING COMPANY ACT OF 1935
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National Fuel Gas Company NFR Power, Inc.
10 Lafayette Square 165 Lawrence Bell Drive, Suite 120
Buffalo, New York 14203 Williamsville, New York 14221
Seneca Resources Corporation National Fuel Gas Distribution Corporation
1201 Louisiana Street, Suite 400 10 Lafayette Square
Houston, Texas 77002 Buffalo, New York 14203
National Fuel Resources, Inc. National Fuel Gas Supply Corporation
165 Lawrence Bell Drive, Suite 120 10 Lafayette Square
Williamsville, New York 14221 Buffalo, New York 14203
Horizon Energy Development, Inc. Highland Land & Minerals, Inc.
10 Lafayette Square 10 Lafayette Square
Buffalo, New York 14203 Buffalo, New York 14203
Data-Track Account Services, Inc. Leidy Hub, Inc.
10 Lafayette Square 10 Lafayette Square
Buffalo, New York 14203 Buffalo, New York 14203
Seneca Independence Pipeline Company Niagara Independence Marketing Company
10 Lafayette Square 1201 Louisiana Street, Suite 400
Buffalo, New York 14203 Houston, Texas 77002
Upstate Energy Inc.
1201 Louisiana Street, Suite 400
Houston, Texas 77002
(Names of companies filing this statement
and addresses of principal executive offices)
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<PAGE>
NATIONAL FUEL GAS COMPANY
(Name of top registered holding company)
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J. R. Peterson,
Assistant Secretary
National Fuel Gas Company
Suite 1500
10 Lafayette Square
Buffalo, New York 14203
(Names and addresses of agent for service of process)
It is requested that the Commission send copies of all
notices, orders and communications to:
Mark D. Buri, Esq.
National Fuel Gas Company
Suite 1500
10 Lafayette Square
Buffalo, New York 14203
<PAGE>
The Post-Effective Amendment No. 1 heretofore filed in this proceeding
on September 10, 1999 as amended by the Amendment No. 1 to Post-Effective
Amendment No. 1 (i.e., Post Effective Amendment No. 2) filed on October 22, 1999
is hereby further amended and restated in its entirety to read as follows:
Item 1. Description of Proposed Transaction
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Introduction
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National Fuel Gas Company ("National") is a public utility holding
company registered under the Public Utility Holding Company Act of 1935, as
amended (the "Act"). National is engaged in the business of owning all of the
outstanding stock of its direct subsidiary corporations. These subsidiaries are
engaged primarily in natural gas exploration, production, transmission, storage,
distribution and marketing as well as other related activities.
NFR Power, Inc. ("Power"), a New York corporation, is a
recently-capitalized subsidiary of National and, as a result of determination of
the Federal Energy Regulatory Commission dated March 29, 1996 (Docket No.
EG96-47-000), is an exempt wholesale generator as defined in Section 32(a)(1) of
the Act.
Pursuant its order of March 20, 1998 (HCAR No. 26847) ("Original
Order"), the Securities and Exchange Commission ("Commission") authorized, among
other things, National and twelve subsidiaries of National to engage in a money
pool arrangement ("Money Pool") through December 31, 2002 ("Authorizing
Period"). The Original Order also authorized National to "guarantee securities
of, and provide other forms of credit support with respect to obligations of,
[twelve subsidiaries of National] as may be necessary or appropriate for the
ordinary business operations of such subsidiaries in a maximum amount not to
exceed $2 billion at any one time during the Authorization Period" ("Guaranty
Authority").
Requested Authority
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National, Power and the current subsidiary participants in the Money
Pool (i.e., National Fuel Gas Distribution Corporation, National Fuel Gas Supply
Corporation, Seneca Resources Corporation, Highland Land & Minerals, Inc. (for
itself and as successor by merger to Utility Constructors, Inc.), Leidy Hub,
Inc., Data-Track Account Services, Inc., Horizon Energy Development, Inc.,
National Fuel Resources, Inc., Upstate Energy Inc. (formerly known as Niagara
Energy Trading, Inc.), Niagara Independence Marketing Company and Seneca
Independence Marketing Company) now request that Power be authorized to become a
limited participant in the Money Pool. In particular, Power's participation
would be limited to depositing surplus funds that it may from time to time
possess into the Money Pool and withdrawing its own funds as needed. In
addition, Power's participation would be subject to the terms and conditions for
Money Pool participation contained in the Original Order and the
Application-Declaration related thereto as amended.
<PAGE>
National also now requests authority to guarantee securities of power
and to provide other forms of credit support with respect to obligations of
Power as may be necessary or appropriate to enable Power to carry on in the
ordinary course of its business. Such guarantees and credit support to Power
shall be subject to the limitations of Rule 53 and shall comply with the terms
and conditions of the Guaranty Authority contained in the Original Order and the
Application-Declaration related thereto as amended.
Item 2. Fees, Commissions and Expenses.
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It is estimated at this time that the fees, commissions and expenses to
be incurred in connection with this post-effective amendment will not exceed
$1,000 in miscellaneous expenses.
Item 3. Applicable Statutory Provisions.
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Money Pool transactions are subject to Sections 6, 7, 9, 10 and 12(b)
and (f) of the Act and Rule 45 thereunder.
The issuance by National of a guarantee is subject to Sections 6, 7 and
12(b) of the Act and Rule 45 thereunder. In addition, the issuance by National
of a guarantee for the benefit of an EWG is subject to Section 32 of the Act.
If the Commission considers the actions described herein to require any
authorization, approval or exemption under any section of the Act or any
provision of the rules or regulations thereunder other than those specifically
referred to herein, such authorization, approval or exemption is hereby
requested.
Rule 54 provides that, in determining whether to approve any
transaction by a registered holding company that is unrelated to any "exempt
wholesale generator" ("EWG") or "foreign utility company" ("FUCO"), the
Commission shall not consider the effect of the capitalization or earnings of
any EWG or FUCO on the holding company system if the requirements of Rule 53(a),
(b) and (c) are met. National is currently in compliance with all requirements
of Rule 53(a). Specifically, National's "aggregate investment" (as defined in
Rule 53(a)(1)) in all EWGs and FUCOs is currently approximately $141.0 million,
or 28.9% of National's "consolidated retained earnings" (also as defined in Rule
53(a)(1)) as of December 31, 1999 ($487.5 million). National is in compliance
with and will continue to comply with the requirements of Rule 53(a)(2), (a)(3)
and (a)(4). Further, none of the conditions or circumstances described in Rule
53(b) has occurred or is continuing. Accordingly, Rule 53(c) is by its terms
inapplicable.
<PAGE>
Item 4. Regulatory Approval.
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No federal agency, other than the Commission, and no state agency has
jurisdiction over this proposal.
Item 5. Procedure.
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The applicants respectfully request that an order be issued approving
this post-effective amendment as soon as practicable but in no event later than
April 3, 2000.
It is submitted that a recommended decision by a hearing or other
responsible officer of the Commission is not needed with respect to this
proposal. The office of the Division of Investment Management Office of Public
Utility Regulation may assist in the preparation of the Commission's decision.
There should be no waiting period between the issuance of the Commission's order
and the date on which it is to become effective.
Item 6. Exhibits and Financial Statements.
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The following are made part of this post-effective amendment:
Exhibits
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B Tentative Draft of Addendum to National Fuel Money
Pool Agreement (attached)
F Opinion of Counsel (attached)
Financial Statements
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Financial statements of the applicants are deemed unnecessary
with respect to the proposed authorization sought herein due to the simple
nature of this post-effective amendment. However, financial statements will be
furnished to the Commission upon request.
Item 7. Information as to Environmental Effects.
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This proposal does not involve major federal action having a
significant effect on the human environment. No federal agency has prepared or
is preparing any environmental impact statement with respect to this proposal.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Public Utility Holding Company Act
of 1935, the undersigned companies have duly caused this statement to be signed
on their behalf by the undersigned thereunto duly authorized.
Dated: March 13, 2000
NATIONAL FUEL GAS COMPANY
By /s/ P. C. Ackerman
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P. C. Ackerman, President
NFR POWER, INC.
By /s/ R. J. Kreppel
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R. J. Kreppel, President
NATIONAL FUEL GAS DISTRIBUTION
CORPORATION
By /s/ D. F. Smith
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D. F. Smith, President
NATIONAL FUEL GAS SUPPLY
CORPORATION
By /s/ R. Hare
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R. Hare, President
SENECA RESOURCES CORPORATION
By /s/ J. A. Beck
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J. A. Beck, President
<PAGE>
HIGHLAND LAND & MINERALS, INC.
By /s/ J. A. Beck
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J. A. Beck, President
LEIDY HUB, INC.
By /s/ W. E. DeForest
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W. E. DeForest, President
DATA-TRACK ACCOUNT SERVICES, INC.
By /s/ P. C. Ackerman
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P. C. Ackerman, President
HORIZON ENERGY DEVELOPMENT, INC.
By /s/ P. C. Ackerman
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P. C. Ackerman, President
NATIONAL FUEL RESOURCES, INC.
By /s/ R. J. Kreppel
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R. J. Kreppel, President
UPSTATE ENERGY INC.
(f/k/a NIAGARA ENERGY TRADING, INC.)
By /s/ J. A. Beck
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J. A. Beck, President
<PAGE>
NIAGARA INDEPENDENCE MARKETING
COMPANY
By /s/ J. A. Beck
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J. A. Beck, President
SENECA INDEPENDENCE PIPELINE COMPANY
By: /s/ D. J. Seeley
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D. J. Seeley, President
Exhibit B
TENTATIVE DRAFT
March 13, 2000
FIRST ADDENDUM
TO THE
NATIONAL FUEL GAS COMPANY
AND PARTICIPATING SUBSIDIARIES
AGREEMENT REGARDING THE
OPERATION OF, AND PARTICIPATION IN,
THE NATIONAL FUEL GAS SYSTEM MONEY POOL
WHEREAS, effective March 23, 1998, National Fuel Gas Company
("National") and the twelve subsidiaries thereof then operating (the "Original
Subsidiaries") executed that certain "National Fuel Gas Company and
Participating Subsidiaries Agreement Regarding the Operation Of, and
Participation In, the National Fuel Gas System Money Pool" ("Agreement")
establishing the terms of operation of the Money Pool; and
WHEREAS, on June 23, 1999, National acquired all of the outstanding
shares of stock in a new subsidiary, NFR Power, Inc. ("Power"); and
WHERAS, on , 2000, the Securities and Exchange
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Commission issued an Order (HCAR No. ) pursuant to the Public Utility
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Holding Company Act of 1935, as amended, and the rules thereunder expressly
permitting Power to participate in the Money Pool; and
WHEREAS, National, the Original Subsidiaries and Power each desire to
have Power admitted to participate in the Money Pool.
NOW, THEREFORE, National, the Original Subsidiaries and Power hereby
agree as follows:
1. Addition of Power to the Money Pool. Effective as of the date
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hereof, Power is admitted as a Participant to the Money Pool for the purpose of
depositing any Surplus Cash that it may from time to time have into the Money
Pool and withdrawing its Surplus Cash as needed. Power may not borrow any other
funds from the Money Pool.
2. Continuance. Except as modified by this First Addendum, all other
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terms and conditions of the Agreement shall remain in full force and effect. If
an inconsistency exists between the Agreement and this First Addendum, the
provisions of this First Addendum shall prevail.
<PAGE>
3. Definitions. Any capitalized terms not defined in this First
-----------
Addendum shall have the meaning ascribed to them in the Agreement.
IN WITNESS WHEREOF, the parties have hereunto executed this Agreement
as the day and year first above written.
NATIONAL:
NATIONAL FUEL GAS COMPANY
By:
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P. C. Ackerman, President
ORIGINAL SUBSIDIARIES:
NATIONAL FUEL GAS DISTRIBUTION CORPORATION
By:
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D. F. Smith, President
NATIONAL FUEL GAS SUPPLY CORPORATION
By:
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R. Hare, President
SENECA RESOURCES CORPORATION
By:
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J. A. Beck, President
HIGHLAND LAND & MINERALS, INC.
By:
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J. A. Beck, President
<PAGE>
LEIDY HUB, INC.
By:
------------------------------------
W. E. DeForest, President
DATA-TRACK ACCOUNT SERVICES, INC.
By:
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P. C. Ackerman, President
HORIZON ENERGY DEVELOPMENT, INC.
By:
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P. C. Ackerman, President
NATIONAL FUEL RESOURCES, INC.
By:
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R. J. Kreppel, President
UPSTATE ENERGY INC. (f/k/a/ Niagara Energy Trading, Inc.)
By:
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J. A. Beck, President
NIAGARA INDEPENDENCE MARKETING COMPANY
By:
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J. A. Beck, President
<PAGE>
SENECA INDEPENDENCE PIPELINE COMPANY
By:
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D. J. Seeley, President
POWER:
NFR POWER, INC.
By:
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R. J. Kreppel, President
Exhibit F
March 13, 2000
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: National Fuel Gas Company, File No. 70-9153
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Ladies and Gentlemen:
As counsel for National Fuel Gas Company ("National Fuel"), a holding
company registered under the Public Utility Holding Company Act of 1935 (the
"Act"), and its subsidiary companies, I deliver to you this opinion for filing
as Exhibit F to Post-Effective Amendment No. 1 to the Application-Declaration
referenced above. Briefly stated, National Fuel and NFR Power, Inc. ("Power")
are seeking authority to add NFR Power, Inc. to the National Fuel Money Pool
previously authorized under File No. 70-9153 for the sole purpose of depositing
any surplus funds that Power may have now or in the future, and National Fuel is
seeking authority to provide guarantees and credit support to Power pursuant to
the terms and conditions previously authorized under File No. 70-9153 for the
benefit of other National Fuel subsidiaries.
In connection with the above, I have examined:
(i) the Post-Effective Amendment, as amended; and
(ii) such other documents, records and matters of
law as I deemed necessary to enable me to
render this opinion;
Based upon the foregoing and relying thereupon and to the extent
ascertainable in advance, I am of the opinion that if the above-referenced
transactions are consummated in accordance with the Post-Effective Amendment:
(i) all state and federal laws applicable to the
proposed transactions will have been complied
with; and
(ii) the consummation of the proposed transactions
will not violate the legal rights of the
holders of any securities issued by National
Fuel, or by any associate company thereof.
<PAGE>
Securities and Exchange Commission
March 13, 2000
I am admitted to practice law in the State of New York. I do not hold
myself out as an expert on the laws of any other state or offer any opinion on
such laws.
I hereby consent to the filing of this opinion as an exhibit to the
Post-Effective Amendment.
Sincerely,
NATIONAL FUEL GAS COMPANY
LEGAL DEPARTMENT
By: /s/ Mark D. Buri
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Mark D. Buri, Attorney
