Exhibit D
a U'S' Department Federal Aviation Administration Civil Rights ofce, Awp.9 0f T'Onspormon Western-Pacic Region 15000 Aviation Blvd. Federal Aviation Lawndale, CA 90261 Administration December 31, 2012 Gael Tarleton, Commissioner Rob Holland, Commissioner Port of Seattle PO. Box 1209 Seattle, Washington 981 11-1209 Dear Commissioners: This is in regard to your letter dated September 28, 2012, as well as to the SeaTac Small Business Association's letter dated October 31, 2012. Both letters request the Federal Aviation Administration (FAA) to provide guidance on a Proposed Substitute Motion, as amended, Regarding Airport Concession Disadvantaged Business Enterprises and Other Small Business at Seattle-Tacoma International Airport dated September 11, 2012. The Port of Seattle Commission (Commission) passed this motion directing the Seattle-Tacoma International Airport (SeaTac) to undertake efforts to extend current leases or negotiate new leases with certain Airport Concession Disadvantaged Business Enterprise (ACDBE) rms. The FAA commends the Commission's commitment to ensure that SeaTac implements and maintains an ACDBE program in accordance with 49 CFR Part 23, Participation of Disadvtmlagea' Business Em'isc in Airgort Concessions. We reviewed the proposal passed by the Commission, dated September 11, 2012. Our initial review is limited to the documents you have presented and is without the benet of input from concessionaires that may be directly affected by this proposal. We have several areas of concern with the overall proposal and anticipate that entering into leases based on this proposal could subject the Sponsor to a formal complaint under 14 CFR Part 16 (Part 16), Rules ofPracticefor Federally Assisted Airport Enforcement Proceedings. In the event a Part 16 complaint is led, the FAA will have the opportunity to review all sides of the issue through formal pleadings and the nal agency decision could be signicantly more restrictive than the concerns outlined in this letter. The following represents a summary of our initial concerns with respect to 49 CFR Part 23: 1) Section 2 ofthe Proposal may violate 49 CFR, Sections 23.45(e) and 23.51(a)(b), by establishing an aspirational 30% ACDBE goal without the required description of the methodology used to calculate the goal and without demonstrable evidence of the availability of ready, willing and able ACDBEs relative to all ready, willing and able businesses available to participate in the SeaTac's ACDBE program. 2) Section 3 of the Proposal may violate 49 CFR Section 23.61 by establishing a quota and/or a set-aside for concessionaire leases by requiring SeaTac to extend or enter into new leases for current ACDBE and other small businesses as direct tenants. 3) Section 3 of the Proposal may violate 49 CFR Section 23.79 by requiring SeaTac to increase the number of direct tenants, especially small locally-owned businesses. A local geographic preference is not permitted in the ACDBE program. 4) Section 3 of the Proposal may violate Federal Airport Improvement Program (AIP) Grant Assurance #24, Fee and Rental Structure depending on the lease structure. Assurance #24 requires the airport to maintain a fee and rental structure that will make the airport as self~sustaining as possible under the circumstances existing at the particular airport. The FAA's Policy and Procedures Concerning the Use ofA irport Revenue (64 FR 7696; February 16, 1999) reiterates this requirement and interprets this assurance to require that the airport receive fair market value for non-aeronautical facilities and services. The airport tenants identied in the pending State legislation as concessionaires are non-aeronautical in nature, and as such, must pay fair market value commercial rates for their airport property. FAA strongly recommends that the Commission review the motion passed on September 1 1, 2012, and take appropriate action to ensure compliance with the ACDBE program. As we stated above, this represents our initial concerns with the documents we have reviewed and does not represent a nal agency decision. In addition, this response does not bind the FAA to any particular resolution in the event that a complaint is led regarding the issues addressed herein. If you have any questions, please contact me at (310) 725-3948, or via email at michael.t'reilich@faa.gov. Sincerely, MW us. Michael D. Freilich, Director Civil Rights, Westem-Pacic Region & DBE Compliance cc: ACR-l ACR-4 JoAnne Robinson, DOT Office of the General Counsel Kathryn M. Vernon, ANM-OO] David Suomi, ANM-002 Patricia Deem, AGC-620 Joelle Briggs, ANM-620 Peter Doyle, SEA-ADO Mark Reis, CEO SeaTac Deanna Zachrisson, ACDBELO SeaTac SeaTac Small Business Association
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