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 seeks a Tourism designation under the terms of the Settlement Agreement arguing that a “Tourism” designation is appropriate because it “provide[s] a wide variety of transportation services and as such should be designated under the tourism designation, under code 481111 or 485310.”
The Settlement Agreement defines “tourism” as “businesses which provide services such as attracting, transporting, accommodating or catering to the needs or
wants of persons traveling to, or staying in, places outside their home community.” Settlement Agreement, Exhibit 2 at 1. Exhibit 2 lists specific NAICS industry codes of businesses that meet the “Tourism” definition.
Despite the Claimant’s NAICS code not being listed among those provided in Exhibit 2 of the Settlement Agreement, Policy 289 gives the Claim Administrator the discretion to determine whether a claimant’s business falls within the “tourism” definition. Characterization of a Claimant’s business as Tourism vs. Non-tourism shall be based on the totality of circumstances, including consideration of the business’ activities during the Benchmark Period and the Class Period.
Claimant argues that the record reflects that the Claimant is engaged in providing a variety of transportation services, ranging from limousine and taxi service to airport transportation. As such, the Claimant should have been designated as a “Tourism” related business since the business provides airport transportation and taxi andlimousine transportation for transfers outside their home community. BP counters that the Settlement Program assigned Claimant a NAICS Code of 485320–limousine Service, the same NAICS code Claimant lists on its 2010 federal income tax return, which lists Claimant’s primary business activity as “Limousine Services.”
The NAICS Code for Limousine Service applies to limousine rental companies like Claimant: 485320 – Limousine Service. This industry comprises establishments primarily engaged in providing an array of specialty and luxury passenger transportation services via limousine or luxury sedans generally on a reserved basis. These establishments do not operate over regular routes and on regular schedules. On its BEL Claim form, Claimant describes its business as follows: Claimant “is a limousine rental company located in Destin, Florida.” BP asserts that the Settlement Program did not err in assigning Claimant the NAICS Code for Limousine Service.
Claimant did not provide any documentation that would otherwise support a tourism designation, e.g., data showing it recorded a significant amount of revenue from non-local customers. While Claimant argues that the Settlement Program should have awarded it a different NAICS Code of 481111 (Scheduled Passenger Air Transportation) or 485310 (Taxi Service), neither of these codes are appropriate. First, the NAICS Code for Scheduled Passenger Air Transportation applies only to businesses providing “air transportation.” Claimant transports its customers by car, not air. Second, the NAICS Code for Taxi Service is also not appropriate for this Claimant because while Claimant may transport passengers by automobile or van like a taxicab company, Claimant specializes in ***per its website. In such respect, the Settlement Program properly applied the NAICS Code for Limousine Service to this Claimant, which is consistent with Claimant’s BEL claim form and tax returns.
This panelist finds that the Settlement Program appropriately exercised its discretion in its assignment of the Claimant to a Non- Tourism NAICS Code, and therefore, Claimant’s appeal is denied.
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