(As filed October 27, 2005)
File No. 70-10074
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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POS AMC
Post-Effective Amendment No. 1
(Amendment No. 3)
to
FORM U-1
APPLICATION OR DECLARATION
UNDER THE
PUBLIC UTILITY HOLDING COMPANY ACT OF 1935
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NATIONAL FUEL GAS COMPANY
NATIONAL FUEL GAS DISTRIBUTION CORPORATION
NATIONAL FUEL GAS SUPPLY CORPORATION
HORIZON ENERGY DEVELOPMENT, INC. AND ITS SUBSIDIARIES
HIGHLAND FOREST RESOURCES, INC. AND ITS SUBSIDIARIES
LEIDY HUB, INC.
DATA-TRACK ACCOUNT SERVICES, INC.
HORIZON LFG, INC. AND ITS SUBSIDIARIES
HORIZON POWER, INC. AND ITS SUBSIDIARIES
6363 Main Street
Williamsville, New York 14221
SENECA RESOURCES CORPORATION AND ITS SUBSIDIARIES
1201 Louisiana Street, Suite 400
Houston, Texas 77002
NATIONAL FUEL RESOURCES, INC.
165 Lawrence Bell Drive, Suite 120
Williamsville, New York 14221
(Names of companies filing this statement and
addresses of principal executive offices)
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NATIONAL FUEL GAS COMPANY
(Name of top registered holding company parent)
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Philip C. Ackerman
Chairman of the Board, President, and Chief Executive Officer
National Fuel Gas Company
6363 Main Street
Williamsville, New York 14221
(Name and address of agent for service)
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The Commission is requested to send copies of all notices, orders and
communications in connection with this Application or Declaration to:
James P. Baetzhold, Esq. Andrew F. MacDonald, Esq.
National Fuel Gas Company Thelen Reid & Priest LLP
6363 Main Street 701 Eighth Street, N.W.
Williamsville, New York 14221 Washington, DC 20001
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ITEM 1. DESCRIPTION OF PROPOSED TRANSACTION.
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1.1 Introduction. National Fuel Gas Company ("National") is a holding
company registered under the Public Utility Holding Company Act of 1935, as
amended (the "Act"). Its sole public utility subsidiary, National Fuel Gas
Distribution Corporation ("Distribution"), distributes natural gas at retail to
approximately 731,000 residential, commercial and industrial customers
(including transportation-only customers) in portions of western New York and
northwestern Pennsylvania.
National's direct non-utility subsidiaries, all of which are wholly-owned,
and the principal business or businesses of each such subsidiary, are as
follows:
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SUBSIDIARY PRINCIPAL BUSINESS
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National Fuel Gas Supply Corporation Transportation and storage of natural gas
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Seneca Resources Corporation Engages, directly and through
subsidiaries and partnerships in which it
is an investor, in natural gas and oil
exploration and production in the United
States and Canada
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Horizon Energy Development, Inc. Engages, directly and through
subsidiaries, in development and
ownership of exempt foreign utility
companies and domestic and foreign
electric generation projects
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Highland Forest Resources, Inc. Together with the Northeast Division of
Seneca Resources Corporation, engages in
marketing of timber hardwood from New
York and Pennsylvania property holdings,
and operation of saw mills; and, through
Empire State Pipeline, a joint venture
between two wholly-owned subsidiaries,
owns and operates a 157-mile natural gas
pipeline
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Leidy Hub, Inc. Provides natural gas hub services to
customers
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National Fuel Resources, Inc. Marketing and brokerage of natural gas
and provision of energy management
services
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Horizon LFG, Inc. Engages, through subsidiaries, in the
purchase, sale and transportation of
landfill gas
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Data-Track Account Services, Inc. Provides collection services, primarily
for associate companies
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Horizon Power, Inc. Exempt wholesale generator
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The non-utility companies listed in the table above, and the wholly- or
partly-owned direct and indirect subsidiaries of such companies, are referred to
in this Application or Declaration as the "Non-Utility Subsidiaries." The term
Non-Utility Subsidiary also includes any other non-utility company in which
National hereafter acquires an interest, directly or indirectly, pursuant to any
available exemption (such as Rule 58) or pursuant to the terms of any order
issued by the Securities and Exchange Commission ("Commission"). Distribution
and the Non-Utility Subsidiaries are collectively referred to as the
"Subsidiaries." National and the Subsidiaries are collectively referred to as
the "Applicants."
1.2 The Applicants' Current Financing Authority. By order dated November
12, 2002 in this proceeding (Holding Co. Act Release No. 27600) (the "Prior
Order"), National and the Subsidiaries are authorized to engage in a program of
external financing, intrasystem financing and other related transactions through
December 31, 2005 (the "Authorization Period"). Specifically, the Commission
authorized: (i) National to increase equity and long-term debt capitalization in
an aggregate amount of up to an additional $1.5 billion, excluding any common
stock issued under National's shareholder rights plan,/1/ and to utilize the
proceeds thereof to make investments in its Subsidiaries, and for other
corporate purposes; (ii) National to issue and sell from time to time up to $750
million principal amount of unsecured short-term debt securities having
maturities of less than one year in the form of commercial paper and borrowings
under credit facilities; (iii) National, and to the extent not exempt under Rule
52, the Subsidiaries to enter into interest rate hedges with respect to
outstanding indebtedness and to enter into certain anticipatory interest rate
hedging transactions; (iv) National to guarantee securities of its Subsidiaries
and provide other forms of credit support with respect to obligations of its
Subsidiaries as may be necessary or appropriate to enable such Subsidiaries to
carry on in the ordinary course of business in an aggregate amount not to exceed
$2 billion outstanding at any one time; (v) National to continue to administer
the National System Money Pool ("Money Pool"), to invest surplus funds and
proceeds of external short-term borrowings in the Money Pool, and, to the extent
not exempt under Rule 52, the Subsidiaries to invest surplus funds in and to
make borrowings from National and from each other through the Money Pool,
subject to certain limitations; (vi) National and Non-Utility Subsidiaries to
organize and acquire the securities of one or more entities (each a "Financing
Subsidiary") formed for the purpose of effecting financing transactions for
National and its Subsidiaries and, to the extent not exempt under Rules 45(b)
and 52, to guarantee the obligations of such Financing Subsidiaries; (vii)
National and the Subsidiaries to change the terms of any majority-owned
Non-Utility Subsidiary's authorized capitalization; and (viii) National to
consolidate or otherwise reorganize all or any part of its direct and indirect
ownership interests in Non-Utility Subsidiaries.
Under the Prior Order, the Commission reserved jurisdiction over (i) the
issuance of securities by National that are rated below investment grade, and
(ii) the solicitation of shareholder approvals in connection with the adoption
of any new stock-based plan or the extension or amendment of any existing
stock-based plan.
1.3 Summary of Requested Approvals. The Applicants herein request that the
Commission issue an order that extends the Authorization Period, subject to the
matters over which the Commission has reserved jurisdiction under the Prior
Order, from December 31, 2005 to and including February 8, 2006, such that the
expiration of the Authorization Period is coterminous with the effective date of
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1 See National Fuel Gas Company, Holding Co. Act Release No. 26532, File No.
70-8841 (June 12, 1996) (authorizing National to adopt and implement a rights
agreement and to issue rights thereunder that entitle the holders thereof to
purchase from National shares of common stock upon the occurrence of certain
events).
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repeal of the Act./2/ The Applicants are not requesting any other changes to the
terms, conditions and limitations imposed under the Prior Order.
ITEM 2. FEES, COMMISSIONS AND EXPENSES.
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The fees, commissions and expenses incurred or to be incurred in connection
with filing this Post-Effective Amendment are not expected to exceed $3,000.
ITEM 3. APPLICABLE STATUTORY PROVISIONS.
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3.1 General. Sections 6(a), 7, 9(a), 10, 12(b), 12(f) and 13(b) of the Act
are applicable to the transactions approved under the Prior Order.
3.2 Compliance with Rules 53 and 54. The transactions proposed herein are
also subject to Rules 53 and 54. Under Rule 53(a), the Commission shall not make
certain specified findings under Sections 7(d) and 12 of the Act in connection
with a proposal by a holding company to issue securities for the purpose of
acquiring the securities of or other interest in an EWG, or to guarantee the
securities of an EWG, if each of the conditions in paragraphs (a)(1) through
(a)(4) thereof are met, provided that none of the conditions specified in
paragraphs (b)(1) through (b)(3) of Rule 53 exists. Rule 54 provides that the
Commission shall not consider the effect of the capitalization or earnings of
subsidiaries of a registered holding company that are EWGs or FUCOs in
determining whether to approve other transactions if Rule 53(a), (b) and (c) are
satisfied. These standards are currently met.
Rule 53(a)(1): As of June 30, 2005, National's "aggregate investment" in
EWGs and FUCOs was $80,733,722, or approximately 10.6% of National's average
"consolidated retained earnings" for the four quarters ended June 30, 2005
($761,669,500).
Rule 53(a)(2): National will maintain books and records enabling it to
identify investments in and earnings from each EWG and FUCO in which it directly
or indirectly acquires and holds an interest. National will cause each domestic
EWG in which it acquires and holds an interest, and each foreign EWG and FUCO
that is a majority-owned subsidiary, to maintain its books and records and
prepare its financial statements in conformity with U.S. GAAP. All of such books
and records and financial statements will be made available to the Commission,
in English, upon request.
Rule 53(a)(3): No more than 2% of the employees of Distribution (National's
sole domestic public utility subsidiary) will, at any one time, directly or
indirectly, render services to EWGs and FUCOs.
Rule 53(a)(4): National will submit a copy of the Application or
Declaration in this proceeding and each amendment thereto, and will submit
copies of any Rule 24 certificates required hereunder, as well as a copy of
Item 9 of National's Form U5S and Exhibits G and H thereof, to each of the
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2 On August 8, 2005, President Bush signed into law the Energy Policy Act of
2005 (P.L. 109-58, 119 Stat. 594), which, among other things, repeals the Act
effective six months after the date of enactment.
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public service commissions having jurisdiction over the retail rates of
Distribution.
In addition, National states that the provisions of Rule 53(a) are not made
inapplicable to the authorization herein requested by reason of the occurrence
or continuance of any of the circumstances specified in Rule 53(b).
ITEM 4. REGULATORY APPROVALS.
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The New York Public Service Commission ("NYPSC") and the Pennsylvania
Public Utility Commission ("PaPUC") have jurisdiction over and have previously
authorized Distribution's utilization of interest rate hedges. Distribution has
received a continuation of authority to engage in these transactions through
December 31, 2008 from the PaPUC and a similar request to the NYPSC is currently
pending. No other state commission, and no federal commission, other than the
Commission, has jurisdiction over any of the other proposed transaction.
ITEM 5. PROCEDURE.
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The Commission is requested to publish a notice under Rule 23 with respect
to the filing of this Application or Declaration as soon as practicable. The
Applicants request that the Commission's order be issued not later than December
31, 2005, and that there not be a 30-day waiting period between issuance of the
Commission's order and the date on which the order is to become effective. The
Applicants hereby waive a recommended decision by a hearing officer or any other
responsible officer of the Commission and consent to the participation of the
Division of Investment Management in the preparation of the Commission's
decision and/or order, unless the Division of Investment Management opposes the
matters proposed herein.
ITEM 6. EXHIBITS AND FINANCIAL STATEMENTS.
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A. EXHIBITS.
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G-1 Proposed Form of Federal Register Notice.
B. FINANCIAL STATEMENTS.
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1.1 Balance Sheet of National and consolidated subsidiaries, as of
September 30, 2004 (incorporated by reference to National's
Annual Report on Form 10-K for the fiscal year ended September
30, 2004) (File No. 1-3880).
1.2 Statements of Income of National and consolidated subsidiaries
for the twelve months ended September 30, 2004 (incorporated by
reference to National's Annual Report on Form 10-K for the fiscal
year ended September 30, 2004) (File No. 1-3880).
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1.3 Balance Sheet of National and consolidated subsidiaries, as of
June 30, 2005 (incorporated by reference to National's Quarterly
Report on Form 10-Q for the period ended June 30, 2005) (File No.
1-3880).
1.4 Statements of Income of National and consolidated subsidiaries
for the six months ended June 30, 2005 (incorporated by reference
to National's Quarterly Report on Form 10-Q for the period ended
June 30, 2005) (File No. 1-3880).
1.5 Balance Sheet of Distribution, as of June 30, 2005.
1.6 Statement of Income of Distribution for the twelve months ended
June 30, 2005.
ITEM 7. INFORMATION AS TO ENVIRONMENTAL EFFECTS.
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None of the matters that are the subject of this Post-Effective Amendment
involves a "major federal action" nor does it "significantly affect the quality
of the human environment" as those terms are used in section 102(2)(C) of the
National Environmental Policy Act. The transactions that are the subject of this
Post-Effective Amendment will not result in changes in the operation of the
Applicants that will have an impact on the environment. The Applicants are not
aware of any federal agency that has prepared or is preparing an environmental
impact statement with respect to the transactions that are the subject of this
Post-Effective Amendment.
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SIGNATURES
Pursuant to the requirements of the Public Utility Holding Company Act of
1935, as amended, the undersigned companies have duly caused this Post-Effective
Amendment filed herein to be signed on their behalves by the undersigned
thereunto duly authorized.
NATIONAL FUEL GAS COMPANY
HORIZON ENERGY DEVELOPMENT, INC.
DATA-TRACK ACCOUNT SERVICES, INC.
By: /s/ Philip C. Ackerman
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Name: Philip C. Ackerman
Title: President
NATIONAL FUEL GAS DISTRIBUTION
CORPORATION
By: /s/ Dennis J. Seeley
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Name: Dennis J. Seeley
Title: President
NATIONAL FUEL GAS SUPPLY CORPORATION
By: /s/ David F. Smith
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Name: David F. Smith
Title: President
HORIZON POWER, INC.
HORIZON LFG, INC.
By: /s/ Duane A. Wassum
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Name: Duane A. Wassum
Title: Assistant Vice President
(signatures continued on next page)
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NATIONAL FUEL RESOURCES, INC.
By: /s/ Donna L. DeCarolis
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Name: Donna L. DeCarolis
Title: President and Secretary
SENECA RESOURCES CORPORATION
HIGHLAND FOREST RESOURCES, INC.
By: /s/ James A. Beck
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Name: James A. Beck
Title: President
LEIDY HUB, INC.
By: /s/ J. R. Pustulka
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Name: J. R. Pustulka
Title: Senior Vice President and
Secretary
Date: October 27, 2005
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