STATE OF CALIFORNIA GRAY DAVIS, Governor

PUBLIC UTILITIES COMMISSION

505 VAN NESS AVENUE

SAN FRANCISCO, CA 94102-3298

November 15, 2002

TO: PARTIES OF RECORD IN CASE 00-01-001

This proceeding was filed on January 3, 2000, and is assigned to Commissioner Michael Peevey and Administrative Law Judge (ALJ) A. Kirk McKenzie. This is the decision of the Presiding Officer, ALJ McKenzie.

Any party to this adjudicatory proceeding may file and serve an Appeal of the Presiding Officer's Decision within 30 days of the date of issuance (i.e., the date of mailing) of this decision. In addition, any Commissioner may request review of the Presiding Officer's Decision by filing and serving a Request for Review within 30 days of the date of issuance.

Appeals and Requests for Review must set forth specifically the grounds on which the appellant or requestor believes the Presiding Officer's Decision to be unlawful or erroneous. The purpose of an Appeal or Request for Review is to alert the Commission to a potential error, so that the error may be corrected expeditiously by the Commission. Vague assertions as to the record or the law, without citation, may be accorded little weight.

Appeals and Requests for Review must be served on all parties and accompanied by a certificate of service. Any party may file and serve a Response to an Appeal or Request for Review no later than 15 days after the date the Appeal or Request for Review was filed. In cases of multiple Appeals or Requests for Review, the Response may be to all such filings and may be filed 15 days after the last such Appeal or Request for Review was filed. Replies to Responses are not permitted. (See, generally, Rule 8.2 of the Commission's Rules of Practice and Procedure.)

If no Appeal or Request for Review is filed within 30 days of the date of issuance of the Presiding Officer's Decision, the decision shall become the decision of the Commission. In this event, the Commission will designate a decision number and advise the parties by letter that the Presiding Officer's Decision has become the Commission's decision.

ANGELA K. MINKIN for   

Carol A. Brown, Interim Chief

Administrative Law Judge

CAB:tcg

Attachment

ALJ/MCK-POD/tcg

PRESIDING OFFICER'S DECISION (Mailed 11/15/2002)

BEFORE THE PUBLIC UTILITIES COMMISSION OF THE STATE OF CALIFORNIA

Air-Way Gins, Inc., et al., Complainants, vs. Pacific Gas and Electric Company, Defendant.

Case 00-01-001 (Filed January 3, 2000)

OPINION RESOLVING COMPLAINANTS' ELIGIBILITY
TO TAKE ELECTRIC SERVICE AT AGRICULTURAL RATES

In this case, we are called upon to decide whether a group of 33 cotton ginners located within the service territory of defendant Pacific Gas and Electric Company (PG&E) are required to take electric service from PG&E under commercial rates, or are entitled to service at the lower agricultural rates PG&E offers pursuant to § 744 of the Public Utilities Code. This requires us to construe the eligibility criterion for PG&E's agricultural tariff, which states in pertinent part:

"A customer will be served under this schedule if 70 percent or more of the energy use is for agricultural end-uses. Agricultural end-uses include growing crops, raising livestock, pumping water for irrigation, or other uses which involve production for sale, and which do not change the form of the agricultural product." (Emphasis added.)

Since there is no real dispute that complainants satisfy the other eligibility conditions, the controlling issue in this case is whether the ginning of cotton constitutes a "change of form" of the raw cotton as it is harvested from the field. PG&E contends that ginning does result in a change of form, because it "invades the corpus" of the cotton plant and results in a change of the texture and appearance of the cotton. Complainants, on the other hand, contend that no change in form occurs, because ginning merely results in the separation of cotton fiber from cottonseed without doing damage to either of them. Both complainants and PG&E contend that their respective positions are supported by our prior opinions in Decision (D.) 97-09-043, Producers Dairy Foods, Inc. v. PG&E, 74 CPUC2d 677 (1997) ("Producers"), and, to a lesser extent, D.92-02-025, Harris Farms, Inc. v. PG&E, 43 CPUC2d 237 (1992) ("Harris Farms").

We conclude that the separation of the cotton fiber from cottonseed that takes place during ginning does not constitute a "change of form" within the meaning of PG&E's eligibility statement, and thus that complainants are entitled to service under PG&E's agricultural tariff. As a consequence of this decision, complainants are entitled to a refund of the difference between what they have been billed for ginning under PG&E's commercial tariffs since the Fall of 1996 (when they first asked to be billed at agricultural rates) and what they would have been billed for the ginning under PG&E's agricultural tariffs. According to a stipulation recently approved in PG&E's bankruptcy proceeding, this refund amounts (as of July 30, 2002) to just under $4.8 million.¹