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BP Business Economic Loss Claim Appeal 2017-656:”Totality of Circumstances” Supports Tourism Designation for Marina

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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

BP appeals the Program’s decision to assign this Claimant a Zone C Tourism RTP (2.00).

Background
This Claimant appears before this Panel for the second time. Claimant owns a restaurant and an adjacent marina. Claimant filed two separate claims, one for each
business. The Program originally denied the marina’s claim, concluding that the marina did not qualify as a Facility. On appeal, this Panel agreed with Claimant that
these two businesses were separate Facilities and that Claimant was entitled to file a separate claim for the marina. The matter was remanded for further processing.
On remand, the Program found causation and calculated an award for Claimant’s marina. The Program also assigned the marina a NAICS code of 722110 –Full-Service Restaurants. As noted above, originally the Program treated the marina and the restaurant as one Facility and assigned the Full-Service Restaurant code to the claim.
It appears as if the Program failed to reevaluate the marina’s NAICS code following this Panel’s ruling that the marina was a separate Facility. Because this NAICS code appears on the presumed Tourism list of codes (Exhibit 2), the Program assigned the corresponding RPT (2.00).
BP’s Argument
On appeal, BP argues that the Full-Service Restaurant code was erroneously assigned to Claimant’s marina. BP contends that Claimant should have been assigned the NAICS code of 713930 – Marinas. This code is not listed on the presumed Tourism list. BP also contends that Claimant did not provide any documentation that would
support a tourism designation for the marina. Further, BP states that the Program has generally classified marinas as non-tourism businesses. As such, BP argues that
the Program should not have assigned the Zone C Tourism RPT (2.00) to Claimant, and instead should have assigned the non-tourism Zone C RPT (0.25).
Claimant’s Response
To Claimant’s credit, Claimant agrees with BP that the appropriate NAICS code is 713930 – Marinas. Further, Claimant acknowledges that this code doesn’t appear
on the presumed Tourism list. However, Claimant contends that the “totality of circumstances” supports the Tourism designation. Claimant provides the following documentation in support of its position:
1. Marina’s location–Claimant’s marina is located in Bradenton, Florida. According to the Convention and Visitors Bureau, more than 2.5 million persons visited the
Bradenton area in 2010. The tourism industry was reported to be the leading employer in 2014.
2. Marina’s source of revenue–According to Claimant, 63% of Claimant’s revenues relate to slip rentals. The majority of Claimant’s customers who rented slips during 2009 to 2011 lived outside of Bradenton. Claimant was able to track customer origin using computer software. Additionally, if accurate addresses were missing, Claimant made phone calls to the customers in order to obtain their address information.
Based on the above data, Claimant created a chart showing what % of slip renters provided addresses that were outside of Bradenton. Per that chart, 60.1% of Claimant’s customers live more than 50 miles from Claimant’s marina.  As noted above, 63% of Claimant’s revenue relates to slip rentals. If 60% of these rentals are from non-locals, then almost 38% of Claimant’s total revenue comes from slip rentals to non-locals.
Claimant suggests that the % of total revenue attributable to non-locals probably exceeds 40% when other sources of revenue are considered. For instance, non-locals who dock their boats at the marina also purchase fuel from the marina, utilize the marina’s laundry services, and purchase supplies in the ship store.
Panel’s Analysis
Although Tourism appeals are driven by facts specific to each claim, this Panel has observed that claimants who can show that at least 30% of their revenue comes
from non-locals are often awarded a Tourism designation, particularly if the Claimant is located in an area known for attracting tourists. This Panel agrees with Claimant that non-local revenue probably exceeds 40%.
Based on the “totality of circumstances,” this Panel finds that the documentation submitted by Claimant supports a Zone C Tourism RPT (2.00). As such, Claimant’s Final Proposal is adopted.

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