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BP Business Economic Loss Claim Appeal 2016-1234: Harvest Date Critical In Agriculture Methodology

The following is an Appeal Panel Decision issued pursuant to Section 6 of the BP Deepwater Horizon Economic & Property Damages Settlement Agreement and the Rules Governing the BP Appeals Process. Links may have been added to assist the reader. The original decision may be found here, as well as a glossary of BP Settlement terms.

Claimant is a corn farmer in Clarksdale Mississippi. It filed a BEL Claim and the Claims Administrator (CA) awarded the sum of $326,061.54 (pre – 0.25 RTP). BP appeals.
The issue on appeal is when the Claimant ended its corn harvest in 2011. Because the Claimant’s financials were not sufficiently matched, the CA applied the Agriculture
Methodology from Policy 495. The Agriculture Methodology basically allocates revenue and expenses over the “crop season”. The crop season is the months from field preparation to the end of the harvest of the produce. In this Claim, the CA determined a harvest end date of November 30, 2011.
For reasons that follow, BP asserts the proper harvest end date had to be before November 15, 2011 and if so, Claimant would not qualify for any award. The CA determined that Claimant’s 2011 corn crop season began on March 1, 2011because Claimant planted its corn crop no later than April 4, 2011 and the CA  assumed Claimant would have begun preparing its fields for planting approximately 30 days before. The CA based its determination of the harvest end date (November 30, 2011) on a check from to Claimant’s owner dated December 6, 2011 in the sum of $62,775.39. BP points out that the Settlement Program relies on the USDA Crop Planting and Harvest Dates.
For corn in Mississippi in 2011, the planting date is April 1, 2011 and the harvest date is August 31, 2011. BP further argues that 100% of the corn farmers surveyed by the USDA reported no corn harvested after October 9, 2011. The Settlement Program’s own data indicates that corn crops grown by Mississippi farmers in 2011 took 120 to 150 days to mature and be harvested. A harvest date of November 30, 2011 would mean that Claimant’s corn took almost 3 months longer to be ready to harvest than the great majority of Mississippi corn farmers monitored by the USDA. Further, the record here contains a Customer Delivery – Ledger Sheet which shows
that the last delivery date of corn by Claimant towas made on October 26, 2011. This document was apparently prepared by Claimant because it was created on April 20, 2016 and went out of business in 2012 or 2013.
The harvest date in this matter is critical. If the harvest date here is November 15, 2011 or earlier, Claimant would not meet the requirements of the V-Shaped Revenue Pattern Test in the Settlement Agreement. The CA’s reliance on a check dated December 6, 2011 to establish the harvest end date is not supported by the record in this matter. The check proves payment on that date but does not prove the harvest end date. This is especially true when compared
to the Customer Delivery – Ledger Sheet which show a latest date of October 26, 2011.
This matter is remanded to the CA to conduct a further investigation into the appropriate harvest end date. This allows the Claimant to produce other documents or
evidence which supports the December 6, 2011 harvest end date.

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