Febmary 12,2010 

VIA CERTIFIED FIRST CLASS U.S. MAIL 

Mr. J. Randolph Babbitt, Administrator 

Federal Aviation Administration 

800 Independence Avenue SW 

Washington, DC 20591 

Dear Administrator Babbitt: 

On September 8, 2008, the undersigned (hereinafter, "petitioners") filed the original and two 

courtesy copies of the enclosed written Petition for Rulemaking' with the Administrator of tlie 

Federal Aviation Administration under the ibllowing authorities, inter alia: 

Hach agency shall give an interested person tiie right to petition for the issuance, amendment, 

or repeal of a rule. 5 U.S.C. § 553(e). 

Prompt notice shall be given of the denial in whole or in part of a written * * * petition * * * 

of an interested person made in connection with any agency proceeding^. * * * [T]he notice 

shall be accompanied by a brief statement of the grounds for denial. 5 U.S.C. § 555(e). 

The Administrator shall act upon all petitions for rulemaking no later than 6 months after tlie 

date such petitions are filed * * * . 49 U.S.C. § 106(f)(3)(A). 

A copy of the United States Postal Service (hereinafter, ''USPS") Certified Mail Receipt (PS 

f onn 3800) 7007 1490 0001 1488 1135, addiessed to the Administrator, bearing a "Sep 8 2008" 

USPS postmark stamp, is enclosed, Exhibit 1, in/ra, as evidence said petition was mailed to the 

Administrator September 8, 2008. A copy of the official USPS 7007 1490 0001 1488 1135 delivery record is also enclosed. Exhibit 2, infra, as evidence said petition was received by the Administrator "09/10/2008." 

DEMAND 

The petitioners reasonably demand the Administrator act on their September 2008 written 

Petition for Rulemaking, described above, within 30 days from the date of this letter. 

' Petition seeks (1) repeal of an agency rule, and (2) the issuance or formulation of two agency 

rules of particular applicabihty to the Aviation Safety and Capacity Expansion Act and the Freedom of Information Act. 

^ "[A]gency proceeding" means "an agency process as defined by [paragraph] (5) * * * ." 5 

U.S.C. § 551(12). Paragraph (5) reads " 'rule making' means agency process for fomiulating, 

amending, or repealing a rule." 5 U.S.C. § 551(5). 

20 39Wd 9Ni>iw3nna JO aoiddo Si0Si9S20S t'Eiet 0X0S/Z.I/£0 
NOTICE 

Although it is clear over "6 months," 49 U.S.C. § 106(f)(3)(A), supra, have passed since said 

written petition was filed with the Administrator, the petitioners have not received a determination in respect thereto or any "notice" of a "denial in whole or in part" of said petition with a 

''statement of the grounds for denial." 5 U.S.C. § 555(e), supra. The petitioners believe that 

they have a legal right to agency action on said petition under the statutoi^ authorities, supra, 

and under theii* constitutional Fifth Amendment right to procedural due process of law. Petitioners allege no legal basis exists for the Administrator's inaction on said petition, and that the Administrator's conduct in the discharge of duties imposed upon him by law is wronglul, without 

lawful reason or excuse, and that petitioners have suffered a compensable injury to a constitutionally protected interest^. 

CONCLUSION 

If the Administrator does not act on the September 2008 written Petition for Rulemaking 

within 30 days fi'om the date of this letter, petitioners will pursue their rights through all legally 

available means. 

Sincerely, 

Guy Heic 

881 Bluebill Drive 

Mendota Heights, MN 55120 

Voice: 651-^4-7440 

ichael A. Kosel 

889 Bluebill Drive 

Mendota Heights, MN 55120 

Voice; 651-456-9512 

)uane Taylor / / 

2338KressinAven 

Mendota Heights. MN 55120 

Voice: 651-452-1172 

Enclosures: 

Copy of Petition for Rulemaking, September 8, 2008 

Exhibit 1: USPS Certified Mail Receipt (PS Fonn 3800) 7007 1490 0001 1488 1135 

Exliibit 2: USPS Deliveiy Record, Certified Mail Item 7007 1490 0001 1488 1135 

Cf Butz V. Economou, 438 U.S. 478 (1978) at 504. 

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PETITIONERS' 

EXHIBIT 

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UNiTEDSmrES 

POSmi SERVICE. 

Date: 09/22/2008 

Guy Helde: 

The following is in response to your 09/22/2008 request for delivery information on your 

Certified Item number 7007 1490 0001 1468 1135. The delivery recprd shows that this item 

was delivered on 09/10/2008 at 10:49 AM In WASHINGTON. DC 20591 to J ROBINSON. The 

scanned image of the recipient information is provided below. 

Signature of Recipient: 

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Address of Recipient: Tci 

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Thank you for selecting the Postal Service for your mailing needs. If you require additional 

assistance, please contact your local F^ost Office or postal representative. 

Sincerely, 

United States Postal Service 

PETITIONERS' 

EXHIBIT 

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PETITION FOR RULEMAKING 

1' Now come the petitioners and show the Administrator of the Federal Aviation Administration (hereinafter, "FAA"^) the name, address and telephone number 

of petitioners: 

Guy Heide^ 

881 Bluebill Drive 

Mendota Heights, Minnesota 55120 

Voice: 651-454-7440 

Michael A. Kosel 

889 Bluebill Drive 

Mendota Heights, MN 55120 

Voice: 651-456-9512 

Duane Taylor 

2338 Kressin Avenue 

Mendota Heights, MN 55120 

Voice: 651-452-1172. 

Glossary of abbreviations and acronyms: 

ADO Airports District Office 

Alles Jeri Alles, Manager-Airports Division, FAA 

ASCEA Aviation Safety and Capacity Expansion Act, 49 USC § 40117 

ANRC Airport Noise Reduction Committee 

APA Administrative Procedure Act 

CFR Code of Federal Regulations 

Cooper Barry D. Cooper, Regional Administrator Great Lakes Region, FAA 

FAA Federal Aviation Administration 

FOIA Freedom of Information Act, 5 USC § 552 

MAC Metropolitan Airports Commission 

MSP Minneapolis-St. Paul International Airport 

Part 158 14 CFR Part 158 

PFC Passenger facility charge 

•^ Lead petitioner for purposes of service. 

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Guy Heide, Michael A, Kosel and Duane Taylor are Secretary, Chairman and 

Treasurer respectively of the Airport Noise Reduction Committee, a nonprofit association. 

I. REQUESTED RULEMAKING 

2- Petitioners seek (1) repeal of an agency rule^, and (2) the issuance or formulation of two agency rules of particular applicability to the Aviation Safety and Capacity Expansion Act (hereinafter, "ASCEA") and the Freedom of Information Act 

(hereinafter, "FOIA")-

II. DUTY AND RESPONSIBILITY OF FAA ADMINISTRATOR 

3 The Administrative Procedure Act (hereinafter, "APA") provides: 

Each agency shall give an interested person the right to petition for the issuance, amendment, or repeal of a rule. 5 USC § 553(e). 

Prompt notice shall be given of the denial in whole or in part of a written * * * 

petition * * * of an interested person made in connection with any agency proceeding'*. * * * [T]he notice shall be accompanied by a brief statement of the 

grounds for denial. 5 USC § 555(e). 

^ "[R]ule" means: 

the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or 

policy or describing the organization, procedure, or practice requirements of 

an agency and includes the aipproval or prescription for the future of rates, 

wages, corporate or financial structures or reorganizations thereof, prices, 

facilities, appliances, services or allowances therefor or of valuations, costs, 

or accounting, or practices be;aring on any of the foregoing. 5 USC § 551(4). 

"* "[AJgency proceeding" means "gin agency process as defined by [paragraph] (5) 

+ * * ." 5 USC § 551(12). Paragraph (5) reads " 'rule making' means agency 

process for formulating, amending, or repealing a rule." 5 USC § 551(5). 

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4 The FAA Administrator is required: 

[To] act upon all petitions for rulemaking no later than 6 months after the date 

such petitions are filed * * * . 49 USC § 106(f)(3)(A). 

III. STATEMENT OF FACTS 

5- Conceming congressional intent in enacting the FOIA, Pub. L. 104-231 § 

2(a) provided: 

(1) the purpose of section 552 of title 5, United States Code, popularly known 

as the Freedom of Information Act, is to require agencies of the Federal Government to make certain agency information available for public inspection and 

copying and to establish and enable enforcement of the right of any person to 

obtain access to the records of such agencies, subject to statutory exemptions, 

for any public or private purpose; 

(2) since the enactment of the Freedom of Information Act in 1966, and the 

amendments enacted in 1974 and 1986, the Freedom of Information Act has 

been a valuable means througji which any person can learn how the Federal 

Government operates; 

(3) the Freedom of Information Act has led to the disclosure of waste, firaud, 

abuse, and wrongdoing in the Federal Government. 

6- The ASCEA amended the Federal Aviation Act of 1958 to authorize the 

Secretary of Transportation to grant a public agency which controls a commercial 

service airport authority to assess a fee for enplaning passengers at such airport to 

finance airport-related projects. 14 CFR Part 158 (hereinafter, "Part 158") implements the ASCEA. Federal Register, Vol. 56, No. 103 at 24254. 

^- Minneapolis-St. Paul International Airport (hereinafter, "MSP") is a 

"[cjommercial service airport," "[cjovered airport," and "[mjedium or large hub 

airport" as defined at 14 CFR § 158.3. 

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8- MSP is owned and operated by the Metropolitan Airports Commission (hereinafter, "MAC"). MAC is a "[pjublic agency" as defined at 14 CFR § 158.3. 

9- For purposes of 14 CFR § 158.43(d), "the appropriate FAA Airports office" 

for MSP is the Airports District Office (hereinafter, "ADO") at 6020 28"" Avenue 

South (Room 102) in Minneapolis, Minnesota. ADO has the delegated duty and 

responsibility of rendering all the services required to make the regulatory system 

accomplish the statutory objectives of the ASCEA. DOT Order 5500.1 § 5-6.c 

(August 9, 2001). 

10. On May 13, 1994, the FAi^^ approved MAC's Second PFC Application for 

$113,064,000 with a February 28, 1998, expiration date, assigning FAA control 

number 94-02-C-OO-MSP. 

11- On September 19, 1996, thie FAA approved MAC's Second PFC Apphcation Amendment No. 1 for ($5,688,000) less dollars—a Type A amendment^, assigned control number 94-02-C-Ol-MSP. 

12. On December 29, 1997, thie FAA approved MAC's Second PFC Application Amendment No. 2 for $18,846,000 additional dollars—^a Type B amendment^ 

assigned control number 94-02-C-02-MSP. 

^ "Type A" meaning authorized under 14 CFR § 158.37(a). DOT Order 5500.1 § 

11-6 (August 9,2001). 

^ "Type B" meaning authorized under 14 CFR § 158.37(b). DOT Order 5500.1 § 

12-6 (August 9, 2001). 

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'3 MAC reported collecting Second PFC Application revenues totaling 

$37,365,260.63 for the twelve months ending January 31, 1999—about $3.1 million each month on average. 

I'*- On November 26, 2007, the Airport Noise Reduction Committee (hereinafter, "ANRC") Secretary submitted a FOIA request (reported as Exhibit A, infra) 

for two agency records , inter alia, viz.: 

MAC'S written notice to air carriers of Second PFC Application Amendment 

No. 1 for ($5,688,000) less dollars (94-02-C-Ol-MSP) containing, inter alia, 

"changes in the charge expiration date." 14 C.F.R. § 158.43(c); 

MAC'S written notice to air carriers of Second PFC Application Amendment 

No. 2 for $18,846,000 additional dollars (94-02-C-02-MSP) containing, inter 

alia, "changes in the charge expiration date." 14 C.F.R. § 158.43(c). 

15 Jeri Alles, Manager-Airports Division (hereinafter, "Alles") in a December 

21, 2007, FAA letter (reported as Exhibit B, infra) issued or formulated the following agency rule to justify denying copies of MAC'S notice to carriers for Amendment Nos. 1 and 2 (94-02-C-01-M:SP and 94-02-C-02-MSP) under the FOLA.: 

[P]ublic agencies are not required to provide [copies of notices to carriers of 

changes in the PFC charge expiration date] to [FAA] for amendments. 

Alles used the mail to deliver this December 21, 2007, letter. 

16- The ANRC in a January 10, 2008, letter to Alles (reported as Exhibit C, infra) complained of agency rule: 

^ Styled request No. 2 and No. 3, respectively. 

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FAA defends non-production of [Second PFC Application Amendment 

No. 1 and Amendment No. 2 notice to carriers of change in the PFC charge 

expiration date] by claiming "public agencies are not required to provide 

[copies of notices to carriers of changes in the PFC charge expiration date] 

to [FAA] for amendments" * * * . ANRC respectfiilly disagrees with this 

legal position. 

Second PFC Application initial charge expiration date was February 28, 

1998. In 1998, MSP montiily PFC revenues ranged from $3 million to $4 

million. Wherefore, Second PFC Application Amendment No. I's 

($5,688,000) reduction would reasonably change PFC charge exph^tion 

date, supra, by one month (at a minimum). Similarly, Second PFC Application Amendment No. 2's $18,846,000 increase would reasonably change 

PFC charge expiration date, supra, by five months (at a minimum). 

Metropolitan Airports Commission (MAC) is MSP "public agency," 

within meaning of Part 158 PFC regulations. MAC certified compliance 

"witii all provisions of 14 CFR part 158." 14 C.F.R. § 158 Appendix A at 

B,2. Since Part 158 clearly mandates "public agency" must "notify carriers 

* * * of changes in the [PFC] charge expiration date" and "provide a copy of 

the [PFC] notification to the appropriate FAA Airports office," MAC had 

clear, nondiscretionary legal duty to notify air carriers of PFC charge expiration date changes flowing firom Second PFC Application amendments and 

''cop/' FAA on these notices. 14 C.F.R. § 158.43(c)(d) (emphasis added). 

Since legal procedure, supra, mandated MAC "copy" FAA on all PFC 

charge expiration date change notices and since FAA has legal duty of care 

to enforce all PFC regulations at MSP, FAA should reasonably produce 

[Second PFC Application Amendment No. 1 and Amendment No. 2 notice 

to carriers of change in the PFC charge expiration date]. Exhibit C, infra at 

6 of 24. 

17 Barry D. Cooper, Regional Administrator Great Lakes Region (hereinafter, 

"Cooper") in a January 25, 2008, FAA letter (reported as Exhibit D, infra) supported denial, repeated agency rule justifying FOIA denial (viz., "public agencies 

Seen. 3. 

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are not required to provide [copies of notices to carriers of changes in the PFC 

charge expiration date] to [FAA] for amendments"), and supplied "the required 

appeals process." Cooper used he mail to deliver this January 25, 2008, letter. 

18- The ANRC in a February 21, 2008, letter to Assistant Administrator for 

Regions & Center Operations (reported as Exhibit E, infra) appealed denial of the 

Second PFC Application Amendment No. 1 and Amendment No, 2 notice to carriers of change in the PFC charge expiration date, requesting and alleging: 

As to [Second PFC Application Amendment No. 1 and Amendment No. 2 

notice to carriers of change in the PFC charge expiration date], ANRC requests FAA come into {compliance with 14 C.F.R. §§ 158.43(c) and 

158,43(d), and make the tijvo reasonably described federal records "promptly 

available." 5 U.S.C. § 552(a)(3)(A)(ii). 

As to [Title 18] allegations in paragraph 17, to hold federal officials accountable under the law, ANRC respectfiilly requests Secretary of Transportation expeditiously relatei this information alleging potential violations of 

federal criminal law to th^ Attorney General for investigation and possible 

criminal charges. Exhibit 3, infra at 13 of 24. 

1^- In reply to ANRC's appeal of this FOIA denial, Ruth Leverenz, Assistant 

Administrator for Regions & Center Operations, in a March 11, 2008, FAA letter 

(reported as Exhibit F, infra) supported Alles' and Cooper's denial asserting: 

The FOIA is not a vehicle 

discipline its employees. Ejxhibit F, infra at 1 

to compel an agency to perform its mission or to 

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IV. STATEJMENT OF LAW 

I. 

20- The ASCEA empowered the Secretary of Transportation to authorize "an 

eligible agency to impose a passenger facility fee" on enplaning passengers "at an 

airport the agency contirols," mandating the Secretary "prescribe regulations necessary" to implement the statutory scheme. 49 USC §§ 40117(b)(1), 40117(i). 

21- In tiie May 29,1991, Federal Register, the FAA published Part 158, which 

set forth legal procedures under the ASCEA for public agency applications for authority to impose a passenger facility charge (hereinafter, "PFC"), for FAA processing of such applications, for collection, handling, and remittance of PFC's by air 

carriers, for recordkeeping and auditing by air carriers and public agencies, for 

terminating PFC authority, and for reducing Federal grant funds apportioned to 

large and medium hub airports imposing a PFC. 

22. To obtain authority to impose a PFC, a public agency must certify compliance "witii all provisions of 14 CFR part 158." 14 CFR Part 158 Appendix A— 

Assurances at § B.2 

23. At all times relevant to the petition, Part 158 required that a public agency 

notify carriers of "changes in tiie [PFC] charge expiration date" and provide a 

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"copy" of said notification to "the appropriate FAA Airports office." 14 CFR §§ 

158.43(c)', (d)'^ 

24. At all times relevant to the petition, Part 158 required that a public agency 

make a changed PFC charge expiration date fi-om a Type A amendment "effective 

on the first day of a month which is at least 60 days fr^om the time the public agency notifies tiie carriers." 14 C.F,R. § 158.37(a)". 

25. At all times relevant to the petition. Part 158 required that a public agency 

"notify the carriers of the effective date of any change to the approved PFC resulting fi-om tiie [Type B] amendment, subject to the limitation that the effective date 

of any new charge shall be no earlier than the first day of a month which is at least 

^ 14 CFR § 158.43(c) then provided (emphasis added): 

The public agency shall notify carriers required to collect PFC's at its airport 

of changes in the charge expiration date. Each notified carrier shall notify 

its agents, including other issuing carriers, of such changes. 

"^ 14 CFR § 158.43(d) provides (emphasis added): 

The public agency shall provide a copy of the notification to the appropriate 

FAA Airports office. 

' ' 14 CFR § 158.37(a) tiien provided (emphasis added): 

A public agency may * * * institute [specified decreases or increases] of 15 

percent or less. The public agency shall notify tiie collecting carriers and the 

FAA in writing of these changes. Any new charge will be effective on the 

first day of a month which is at least 60 days from the time the public agency 

notifies the carriers. 

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60 days from the time the public agency notifies the carriers." 14 CFR § 

158.37(b)(l)'l 

n. 

26- Rendering all the government services required to make the regulatory system put in place" to accomplish what Congress intended in enacting the FOIA (paragraph 5 is incoiporated by reference) and ASCEA's statutory scheme is a matter 

within government's executive branch jurisdiction. Wherefore, FAA officers and 

employees rendering those services are accountable for their statements, representations, making of documents and use of documents under the False Statements 

Accountability Act, which provides (emphasis added): 

Except as otherwise provided in this section, whoever, in any matter within the 

jurisdiction of tiie executive • * * branch of the Government of the United 

States, knowingly and willfully -

'^^ 14 CFR § 158,37(b)(l) tiien provided (emphasis added): 

In the event of no carrier disagreement with a change proposed under paragraph (b) of this section, the public agency may institute the proposed 

amendment * + * . The public agency shall notify the carriers of the effective date of any change to the approved PFC resulting from the amendment, 

subject to the limitation that the effective date of any new charge shall be no 

earlier than the first day of a month which is at least 60 da.ys from the time 

the public agency notifies the carriers. 

And, 14 CFR § 158.37(b)(2) tiien provided in relevant part (emphasis added): 

* * * If the amendment is approved [despite carrier disagreement] the Administrator advises the pubUc agency and notification to the carriers will he 

as provided under paragraph (b)(1) of this section. 

'^ Reported in, respectively, 49 CFR Part 7 and Part 158. 

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(1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact; 

(2) makes any materially false, fictitious, or fiaudulent statement or representation; or 

(3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious or fraudulent statement or entry; 

shall be fined under this title or imprisoned not more than 5 years, or both. 18 

USC § 1001(a). 

III. 

27- FAA officers and employees rendering all the government services required to make the regulatory system put in place to accomplish what Congress intended in enacting the FOIA (paragraph 5 is incorporated by reference) and ASCEA's statutory scheme are accountable for consciously failing to render "honest 

services" under U.S. Code Title 18, Chapter 63 (Mail Fraud), which provides (emphasis added); 

For the purposes of this chapter, the term "scheme or artifice to defi-aud" includes a scheme or artifice to deprive another of the intangible right of honest 

services. 18 USC § 1346. 

And reading § 1346, supra, with § 1341 provides the following prohibition (emphasis added): 

Whoever, having devised or intending to devise any [scheme or artifice to deprive another of the intangible right of honest services], * * * for the purpose of 

executing such scheme or artifice or attempting so to do, places in any post office or authorized depository/sr mail matter, any matter or thing whatever to be 

sent or delivered by the Postal Service, or deposits or causes to be deposited any 

matter or thing whatever to be sent or delivered by any private or commercial 

interstate carrier, or takes or receives therefrom, any such matter or thing, or 

knowingly causes to be delivered by mail or such carrier according to the direction thereon, or at the place at which it is directed to be delivered by the person 

11 

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to whom it is addressed, any such matter or thing, shall be fined under this title 

or imprisoned not more than 20 years, or both. 18 USC §§ 1341, 1346, 

28. 18 USC § 1346, supra, was enacted by Congress to reverse a holding in 

McNally v. United States^\ 483 U.S. 350 (Sup. a . 1987), viz., "[t]he mail fi-aud 

statute clearly protects property rights, but does not refer to the intangible right of 

the citizenry to good government." Id., at 356. In interpreting "to defraud the 

United States," McNally relied on the legal principles in Hammerschmidt v. United 

States, 265 U.S. 182 (1924) (emphasis added): 

[T]he words "to defiraud" commonly refer "to wronging one in his property 

rights by dishonest methods or schemes," and "usually signify the deprivation 

of something of value by trick, deceit, chicane or overreaching." Ibid, at 358 

(Hammerschmidt citations omitted). 

Hammerschmidt indicates, in regard ["to defraud"] that while "[t]o conspire to 

defraud the United States means primarily to cheat the Government out of 

property or money, 

* * * it also means to interfere with or obstruct one of its 

lawful governmental functions by deceit, craft or trickery, or at least by means 

that are dishonest." Ibid, at 358-9 n. 8. 

29. U.S V. Brumley, 116 F.3d 728 (5* Cir. 1997) reviewed § 1346 as applied 

to govenmient employees deciding (emphasis added): 

''^ See U.S. V. Defries, 858 F.Supp. 1 (D.D.C. 1994): 

In 1988, in reaction to the McNally decision. Congress enacted § 1346, adding "tiie intangible right of honest services" to the otherwise unenumerated 

"property" rights it was a crime to deprive anotiier of by a scheme or artifice 

to defi-aud using the mails. Ibid, at 4. 

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[A] government entity [i.e., FAA] qualifies as "another" within the meaning of 

§ 1346 [and] "honest services" can include "honest and impartial government." 

Ibid at 731. 

The statute [§ 1346] contemplates that there must first be a breach of a [government] dufy. Ibid, at 734. 

"[H]onest services" contemplates that in rendering some particular service or 

services, the defendant was conscious of the fact that his actions were something less than in the best interests of the employer ***.[ ] If the employee 

renders all the services his position calls for, and if these and all other services 

rendered by him are just the services which would be rendered by a totally 

faithful employee, and if the scheme does not contemplate otherwise, there has 

been no deprivation of honest services. Ibid, at 734, 

2<^ FAA officers and employees entrusted with the duty and responsibilify of 

rendering all the government services required to make the regulatory system put 

in place to accomplish what Congress intended in enacting the FOIA (paragraph 5 

is incoiporated by reference) and ASCEA's statutory scheme have been clearly entrusted with a property interest, i.e., "something of value"*^ to both a government 

entity and a party with title to those honest services. FAA officers or employees 

consciously devising a scheme or artifice using "dishonest" means (i.e., means that 

are "less than in the best interests of the [FAA]," not "the services which would be 

rendered by a totally faithful [FAA] employee") to "interfere with or obstruct one 

of [FAA'S] lawful governmental fiinctions," and using the mail, or causing the 

McNally, supra at 358 (citing Hammerschmidt). 

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mail to be so used, for the purpose of executing or intending to execute that 

scheme or artifice are accountable under 18 USC §§ 1341, 1346*^. 

V. REQUESTED RULEMAKING 

31- Petitioners respectfully request: 

RULE NO. 1 

Repeal of the agency rule issued or formulated by Alles and Cooper that public 

agencies are not required to provide copies of notices to carriers of changes in 

the PFC charge expiration date to FAA for amendments (paragraphs 15 and 17 

are incorporated by reference). 

RULE NO. 2 

Issuance or formulation of an agency rule requiring ADO to promptly obtain 

copies of MAC's notices to carriers of changes in PFC charge expiration date 

for Second PFC Application Amendment No. 1 (coded 94-01-C-02-MSP) and 

for Second PFC Application Amendment No. 2 (coded 94-02-C-02-MSP) and 

to promptly notify Guy Heide, infra, so that ANRC can make prompt request 

under the FOIA for their production. 

RULE NO. 3 

Issuance or formulation of an agency rule to U.S, Attorney General relating information in paragraphs 40-49 of probable cause Alles and Cooper violated 18 

USC §§1001 and 1341,1346 for investigation and possible criminal charges. 

VI. REASONS WHY REQUESTED RULES SHOULD ISSUE 

CASE FOR RULE NO. 1 

A. 

32. Alles' and Cooper's unpublished agency rule holding public agencies are 

not required to provide copies of notices to carriers of changes in the PFC charge 

'^ Citation for "dishonest" and "interfere with or obstruct one of lawful govemmental functions" is McNally, supra at 358-9 n. 8 (citing Hammerschmidt). Citation for "less than in the best interests of the * * * " and not "the services which 

would be rendered by a totally faithful employee" is Brumley, supra at 734. 

14 

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expiration date to FAA for amendments (see paragraphs 15 and 17) should be repealed for being "arbitrary, capricious" or "otherwise not in accordance with law," 

5 USC § 706(2)(A). 

B. 

33- The plain language at 14 CFR §§ 158.43(c), (d) clearly requires that a publie agency authorized to impose a PFC must ("shall") as a matter of law notify 

carriers of changes in the PFC charge expiration date and "provide a copy of the 

notification to the appropriate FAA Airports office" (paragraph 23 is incorporated 

by reference). 

3'». DOT Order 5500.1 plainly and unambiguously supports this reading of 

Part 158 (as requiring public agencies to copy FAA on each and every PFC charge 

expiration date change notification) when explaining "notice [of a new Type A 

amendment charge expiration date] shall be sent to* * * the appropriate FAA Airports office,'' and "it [the public agency] shall notify * * * the appropriate FAA 

airports office of any new [Type B amendment] charge effective and/or expiration 

date,^* and "the public agency will notify * * * the appropriate FAA Airports office 

of the effective and/or expiration date of any new [Type B amendment] charge.^'' 

^^ See King v. National Transp. Safety Bd, 362 F,3d 439 (8tii Cir. 2004): 

In carrying out that [statutory] mandate the FAA has authority to promulgate 

legislative rules that carry the force of law. Ibid, at 441. 

-15-

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DOT Order 5500.1 §§ 11-7,(3), 12-12, 12-17^^ (August 9, 2001) (all emphasis 

added). 

35- Alles and Cooper in issuing or formulating an agency rule that violates a 

clear Part 158 procedural prerequisite acted arbitrarily or capriciously. Wherefore, 

Alles' and Cooper's agency rule should be repealed and Rule No. 1, supra, should 

issue for "an agency's failure to apply a rule in a situation to which the rule obviously pertains [works a violation of the arbitrary-and-capricious standard]. See, 

e.g. New York State Energy Research & Development Authority v. FERC, 746 F.2d 

64, 66-69 (D.C. Cir. 1984)." Federal Election Com'n v. Rose, 806 F,2d 1081, 

1089 (D.C. Cir. 1986). 

C. 

3^- Alles' and Cooper's unpublished agency rule, supra, adversely affected petitioners when denying petitioners "something of value" or interfering with or obstructing "lawful governmental fimctions" (see McNally, paragraph 28, supra) 

when used to deny petitioners' lawful FOIA request for reasonably described government records. 5 U.S.C. § 552(a)(3)(A)(ii)^^ 49 CFR § 7.11, 

^* §§ 12-12 and 12-17 both concern Type B amendments, the difference being 

whether amendment issues without or with carrier disagreement. 

'^ Which statute requires "[each agency upon any request for reasonably described 

records in accordance with published rules] shall make the records promptly available to any person." 

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37 In issuing or formulating an agency rule that deprived petitioners of a 

statutory right or entitlement to the production of government records, thereby 

learning how the FAA "operates" (paragraph 5 is incorporated by reference), 

Alles' and Cooper's actions were "otherwise not in accordance witii law." 5 USC 

§ 706(2)(A). Wherefore, Alles' and Cooper's agency rule should be repealed and 

Rule No. 1, supra, should issue for the statute at 5 USC § 552(a)(l)^° "clearly provides that no administrative action taken pursuant to unpublished procedures can 

be allowed to stand against a person adversely affected thereby," Northern California Power Agency v. Morton, 396 ¥,Supp. 1187, 1188 (D.D.C. 1975). 

CASE FOR RULE NO. 2 

A. 

38- The FAA is reasonably bound to enforce its own rules and regulations. 

"Implicit in the authority to issue [FAA] regulations is the responsibility to enforce 

tiiem." Federal Register, Vol. 44, No. 215 at 63720. Departing firom the plain 

meaning of a published rule (viz., 14 CFR §§ 158.43(c), (d); paragraphs 23 and 33-

34 are incorporated by reference) without an adequate explanation creates an underground body of law good for one place and time only. Such an agency ap-

^^ Which statutes provides "a person may not in any maimer • * * be adversely 

affected by, a matter required to be published in the Federal Register and not so 

published." 5 USC § 552(a)(1)(D). 

17 

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proach would be justly deemed an approach to arbitrary power^\ to the exercise of 

mere discretion, and to the abandonment of all legal checks upon FAA authority. 

B. 

39. A remedy must be fashioned to provide relief^^ which adequately redresses 

injury to petitioners firom Alles' and Cooper's use of a specious pretext that failed 

to comply with a specific regulatory direction (paragraphs 32-35 are incorporated 

by reference) to justify the denial of a lawful FOIA request in breach of FAA's statutory duty (paragraphs 32 and 36-37 are incoiporated by reference). Wherefore, 

Rule No. 2, supra, should issue requiring ADO to enforce 14 CFR §§ 158.43(c), 

(d) by promptly obtaining the required copies of MAC's notices to carriers of 

changes in PFC charge expiration date for Second PFC Application Amendment 

No. 1 (coded 94-01-C-02-MSP) and for Second PFC Application Amendment No. 

^* See Pontchartrain Broadcasting Co., Inc. v. FCC , 15 F.3d 183 (D.C. Cir, 

1994): 

[A]n unexplained departure from Commission precedent would have to be 

overturned as arbitrary and capricious. See Crosthwait v. FCC, 584 F.2d 550, 

556 (D.C.Cir.l978); see also United Food & Commercial Workers Local 250-A 

v. NLRB, 880 F.2d 1422,1434-39 (D,C.Cir.l989). Ibid at 185. 

^" "[Rjelief includes the whole or a part of an agency— 

(A) grant of money, assistance, license, authority, exemption, exception, 

privilege, or remedy; 

(B) recognition of a claim, right, immunity, privilege, exemption, or exception; or 

(C) taking of other action on the application or petition of, and beneficial to, 

a person. 5 USC § 551(11). 

-18-

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9NI>iyN3nny JO 3DIJJ0 9^09^92202 LP--ZI 0X02/AT/£0 
2 (coded 94-02-C-02-MSP) and notifying Guy Heide, infr-a, so that ANRC can 

make prompt request under the FOIA for their production. 

CASE FOR RULE NO. 3 

A. 

40- On or about December 21, 2007, and January 25, 2008, in or about Chicago, Illinois, it is alleged Alles (paragraph 15 is incorporated by reference) and 

later Cooper (paragraph 17 is incorporated by reference) knowingly and willfiilly 

made and used a document that contained a materially false, fictitious, or fraudulent statement, and thereafter used the same to block or thwart a request under the 

FOIA for reasonably described government records—a violation of 18 U.S.C. § 

1001 (paragraph 26 is incorporated by reference). The documents in question are 

both letters, received in the mail, which letters specifically state petitioners may 

not have two reasonably described government records for the sole reason that 

"[w]e [FAA] do not have copies * • * public agencies are not required to provide 

[copies of notices to carriers of changes in the PFC charge expiration date] to 

[FAA] for amendments (emphasis added)," thereby removing two requested government records from the FOIA's purview, disabling the FOIA. (The documents 

are reported as Exhibits B and D, infra.) 

•^i- It is alleged Alles' and Cooper's statements are material in that statements 

disabled the FOIA from functioning as Congress intended for, absent this state19-

t>2 39yd 9NI>iyW3nny JO 30IJJ 0 9^09^92202 L^-E I 2\2ZIL\tZ2 
ment, the FAA had a legal duty to produce the two reasonably described government records. 

'^2. It is further alleged Alles' and Cooper's material statements, supra, are 

false for the reasons set forth with particularity and the support of published rules 

in paragraphs 32-35 (incorporated by reference). . 

43. It is further alleged Alles' and Cooper's materially false statements, supra, 

were knowingly made as the applicable statute and rules were known^^ to Alles 

and Singleton at the time, for Alles and Cooper each had the responsibility to familiarize tiiemselves witii 14 CFR Part 158 and 49 CFR Part 7 (paragraph 26 is incotporated by reference) to adequately perform the legal duties imposed upon 

them. It should be noted that Alles and Cooper had constructive knowledge of the 

applicable statute and rules as the FOIA request specifically included and referenced them (see Exhibit A, infra at 1-3 of 24; also see Exhibit C, infra at 6 of 24), 

44- It is further alleged Alles' and Cooper's materially false statements, supra, 

were willfully made. Alles and Cooper in making reasonably described records 

available under the FOIA were de facto government officers^* performing a legal 

duty. As government officers, it must be presumed each well knew their legal duty 

Ignorance of the law or a mistake of law is "no defense to criminal prosecution" 

for "the law is definite and knowable, the common law presumed that every person 

knew the law." Cheekv. United States, 498 U.S. 192,199 (Sup. Ct. 1990). 

20-

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under the ASCEA and the FOIA upon entering their office. For purposes of Titie 

18, willful conduct has been defmed as the voluntary, intentional violation of a 

known legal duty^^. To this point, Alles' and Cooper's statements appear in the record as voluntary, intentional acts of free will, deliberately made over ANRC's 

remonstrations (see Exhibits C and E, ir^a). In the record, it should be noted that 

Alles' and Cooper's materially false statements, supra, transcend poor judgment 

and are not reasonably attributable to misunderstanding. It is alleged that the 

ioTC^omg prima facie evidence is sufficient to find probable cause Alles and Cooper violated 18 U.S.C. § 1001. 

B. 

45. On or about December 11, 2007, and January 25, 2008, in or about Chicago, Illinois, it is alleged Alles (paragraph 15 is incorporated by reference) and 

Cooper (paragraph 17 is incorporated by reference) constructed a scheme or artifice to defraud the government of the intangible right of honest services, and used 

the mail or caused the mail to be so used (to this point see paragraphs 15 and 17) 

for the purpose of executing the scheme or artifice—^a violation of 18 USC §§ 

1341, 1346 (see paragraphs 27-30). 

24 u 'j^ojfficer' includes any person authorized by law to perform the duties of the 

office." 1USC§1. 

^^ "[W]illfully means the 'voluntary, intentional violation of a known legal duty, 

[citations omitted].' " Cheek, supra at 201. 

-21-

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46. Alles and Cooper had imposed on them the duty and responsibility to render all the government services required to make the regulatory system put in place 

to accomplish what Congress intended in enacting the FOIA (psuragraph 5 is incorporated by reference) and ASCEA's statutory scheme. It is alleged Alles and Cooper each consciously constructed FOIA denials in breach of this government duty 

as a scheme or artifice that would deprive the government and the ANRC of the 

services Congress required of FAA employees under the FOIA, specifically 5 

U.S.C. § 552(a)(3)(A)(ii)^^. It is specifically alleged tiiat, for tiie purpose of constructing said scheme or artifice, Alles and Cooper knowingly made a false statement, well calculated to mislead, when stating petitioners could not have two reasonably described government records for the sole reason that "[w]e [FAA] do not 

have copies * * * public agencies are not required io provide [copies of notices to 

carriers of changes in the PFC charge ejqjiration date] to [FAA] for amendments 

(emphasis added)." Exhibits B and D, infra. 

47. At all relevant times, it is alleged Alles and Cooper consciously denied the 

petitioners of "something of value," interfered or obstructed a "lawful [FAA] government function," acted in "less than in the best interests of the [FAA]," and 

failed to render the services "which would be rendered by a totally faithful [FAA] 

employee" (citations are Hammerschmidt and Brumley standards for "to defiraud" 

26 ITir, "arr»nM 7 * * • Viz., "agency * * * shall make the records promptiy available to any person.' 

-22 -

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and deprivation of "honest services," see paragraphs 27-30), thereby denying the 

government or the ANRC the intangible right of "honest services," In the record, 

it should be noted that Alles" and Cooper's materially false statements, supra, do 

not appear to be innocent mistake or error. It is alleged that the foregoing/?rz>«<3 

facie evidence is sufficient to find probable cause Alles and Cooper violated 18 

U.S.C. §§ 1341,1346. 

C. 

48- A Statute or rule cannot substitute for individual integrity, Alles' and Cooper's alleged past mistakes or errors are arguably such as undermine the public's 

general confidence in members of the federal agencies and the system they work 

in. For this system to function as it should, the public must trust in members of 

federal agencies, confident such are providing "honest services." 

49- If one accepts, arguendo, that Alles and Cooper knowingly and willfully 

failed in their duty and responsibility to render all the honest government services 

required to accomplish what Congress intended in enacting the FOIA and ASCEA, 

then the threat or likelihood of recurrence is substantial for Alles and Cooper do 

not appear to recognize any wrongdoing, "It has long been recognized that the likelihood of recurrence of challenged activity is more substantial when the cessation is not based upon recognition of the initial illegality of that conduct." Armster 

V, United States Dist Court, 806 F.2d 1347, 1359 (9^^ Cir. 1986). "[P]ast wrongs 

23 

80 39yd 9NI>iyW3nny JO 3DIJJ0 9^05^92202 L\^-ZI 2\2Z/L\/Z 2 
are evidence bearing on whether there is a real and immediate threat of repeated 

injury." O'Shea v. Littleton, 414 U.S. 488, 496 (Sup. Q. 1973). 

50- A remedy must be fashioned to provide relief which adequately redresses 

both Alles' and Cooper's alleged past an<a? potential future violations of 18 USC §§ 

1001 and 1341, 1346. Wherefore, Rule No. 3, supra, should issue requiring the 

information in paragraphs 40-49, supra, alleging Alles and Cooper violated 18 

USC §§ 1001 and 1341, 1346 be referred or related to the U.S. Attorney General 

for investigation and possible criminal charges. 

VII. CONCLUSION 

51- Petitioners request the Administrator repeal the agency rule, and issue or 

fonmulate the two agency rules of particular applicability to the ASCEA and the 

FOIA substantially as set forth in paragraph 31, supra. 

VIII. CERTIFICATE OF PETITIONERS 

52. Petitioners certify that, to the best of their knowledge, the statements in the 

above petition for rulemaking are true. 

Respectfully submitted September 8,2008. 

Guy Heide ^ 

881 Bluebill Drive 

Mendota Heights, Minnesota 55120 

Voice: 651-454-7440 

-24. 

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Michael A. Kosel 

889 Bluebill Drive 

Mendota Heights, MN 55120 

Voice: 651-456-9512 

n fu^^lyhJL^ 

Duane Taylor 

2338 Kressin Avenue 

Mendota Heights, MN 55120 

Voice: 651-452-1172 

-25-

0T 39yd 9Ni>iyw3iny JO 30IJJ O 9i09Z.92202 L\f\Z\ 2\2ZIL\IZ2 
CERTIFICATE OF SERVICE 

I hereby certify that I caused the original copy of the Petition for Rulemaking 

dated September 8,2008, along with two courtesy copies, to be deposited with the 

United States Postal Service ("USPS") on September 8. 2008, for service by certified First Class or Priority Mail, postage prepaid, upon the following party at the 

last address known to petitioners, as noted below; 

Administrator Robert A. Sturgell (Acting) 

Federal Aviation Administration 

800 Independence Avenue SW 

Washington, DC 20591 

iU-tJS.^.---' 

Guy Heide 

•26 -

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9NI>iyW3ina JO 3DIJJ0 9^09^92202 LP'-ZI 2\2Z!LXtZ2 
INDEX OF EXHIBITS 

A. Letter from Guy Heide (ANRC) to Mary Kay Hewlett (FAA), November 26, 

2007 

B. Letter from Jeri Alles (FAA) to Guy Heide (ANRC), December 21,2007 

C. Letter from Guy Heide (ANRC) to Jeri Alles (FAA), January 10,2008 

D. Letter from Barry D. Cooper (FAA) to Guy Heide (ANRC), January 25, 2008 

E. Letter from Guy Heide (ANRC) to Assistant Administrator for Regions & 

Center Operations (FAA), February 21, 2008 

F. Letter from Assistant Administrator for Regions and Center Operations (FAA) 

to Guy Heide (ANRC). March 11.2008 

20 39yd 9NI>iyW3nnd JO 30IJJ0 Si09i92202 L^-Z\ 2l2ZfL\fZ2 
November 26, 2007 

Guy Heide, Secretary 

Airport Noise Reduction Commince 

881 Bluebill Drive 

Mendota HeigJits,MN 55120 

Phone: 651-454-7440 (Home) 

Phone; 952-548-5925 (Work) 

Fax: 952-548-5930 

Freedom of Information Act (FOIA) Request 

VIA FACSIMILE SERVICE TO 847-294-7184 

& FIRST CLASS U.S. MAIL 

Ms. Maiy Kay Howlett 

Federal Aviation Admlmsiratioa 

Great Lakes Region 

2300 East Devon Avenue 

DesPlaijjes,IL 60018 

Dear Ms. Howlett 

We make the following request for govemmem information pursuant to the Freedom of Information Act 

C^FOL^"), which requires reasonably described records to be made "promptly available to any person" 

[5U.S.C.§5S2(aX3XAXii)]. 

Format: Paper 

Fee category:. Other requestor 

Max. fee 

able to pay: 

Fee waiver: 

Describe 

request: 

$50.00 (although we believe this information should be furnished at no charge, see infra) 

While this FOIA request offers to pay a maximum fee of $50,00, since the public- interest and 

benefit in producing the reasonably described government records is likely to contribute 

significantly to public understanding of the passenger facility charge <'TFC") program at 

Minneapolis-St. Paul International Airport ("MSP"), we believe the reasonably described 

govemment records should be produced at "at no chaise," pursuant to ihe FOIA's "public 

interest" fee exemption' at 5 U.S.C. § S52(aX4XA)(iii). 

The 14 CFJl. Part 158 regulations set forth the relevant legal procedures governing FAAadministered PFC programs. 

MSP is a "commercial service airpoit,'* "covered airport," and "medium or large hub airport" 

as defined at 14 C J.R. § 158.3. MSP is owned and operated by the Metropolitan Airports 

Commission ("MAC"). MAC is a "public agency" as defmed at 14 Cf .R. § 158.3. In 

applying for authority to collect and use PFC revenues, MAC certified compliance with 

"Assurances" in 14 C.F.R. § 158 Appendix A. 

In addition to the "public interest" fee exemption, no fee may be charged "if the costs of routine collection 

and processing of the fee are likely to equal or exceed the amount of the fee" or "for the first two hours of search 

time or for the first one hundred pages of duplication," [5 U.S.C. §§ 552(aX4XA)(iv)(D, 552(aX4XA)(iv)(ID]. 

d^^ 

£0 39yd 

PETITIONERS' 

EXHIBIT 

4 

9Ni>iyw3nna JO 3DIJJO Si0QZ.92202 iS:eT 2\2ZIL\IZ2 
Page Two 

November 26, 2007 

On May 13, 1994, FAA approved MAC's Second PFC Application for SI 13,064,000, assigning 

FAA control number 94-02-C-OO-MSP. 

On September 19,1996, FAA approved MAC's Second PFC Application Amendment No. 1 for 

($5,688,000) less dollars, assigning FAA control number 94-02-C-Ol.MSP. 

On December 29,1997, FAA approved MAC's Second PFC Application Amendment No. 2 for 

$18,846,000 additional dollars, assigning FAA control number 94-02-C-02-MSP. 

On January 24,2001, FAA approved MAC's Second PFC Application Amendment No. 3 for 

$14,556,569 additional dollars, assigning FAA control number 94-02-C-03-MSP. 

Legal procedure required MAC give air carriers written notice of initial imposition of Second 

PFC Apphcation, which notice must contain "at a minimum" the following information: "[t]he 

level of PFC to be imposed," "[t]h8 total revenue to be collected," "[l]he charge effective date 

which will be the first day of a month which is at least 60 days from the dale the public agency 

notifies the carriers," "Whe proposed charge expiration date,** "[a] copy of the Administrator's 

notice ofapproval," and "[t]he address Mjere remittances and reports are to be filed." 14 

CJR.R. § 158.43(a), (b). Legal procedure also required MAC provide FAA Airports office "a 

copy of the [Second PFC Application] notification" to air carriers imposing $113,064,000. 14 

C.F.R. § 158.43(d). 

Thereafter, then-current legal procedtire required MAC notify air carriers and FAA "in writing" 

of 14 C.F.R. § 158.37(a) amendments ("changes") imilaterally implemented by MAC, subject to 

the limitation "[a]ny new charge will be effective on the first day of a month which is at least 60 

days from the time the public agency notifies the carriers," and include "changes in the charge 

expiration date." 14CJ.R §§ 158.37(a); 158-43(c),(d). 

Such legal procedure required MAC notify air carriers and FAA of the "eflfective date" of 14 

C.F.R- § 158,37(b) amendments, subject to the limitation "any new charge shall be no earlier 

than the first day of a month which is at least 60 d^ s from the time the public agency notifies 

the carriers," and include "changes in the charge expiration date." 14 C.F.R. §§ 158.37(b)^-, 

158.43(c), (d). 

Based on the foregoing, FAA Airports office should have on file MAC'S Second PFC 

Application notice to air carriers imposing $113,064,000 and MAC's air carrier notices of 

Second PFC Application Amendments Nos. 1-3. Wherefore, we respectfully request production 

of the following reasonably-described records: 

1. MAC'S written notice to air carriers of Second PFC Application imposing $113,064,000 

(94-02-C-OO-MSP) containing "at a minimum" the foUowmg information: "[t]he level of 

PFC to be imposed," "[t]he total revenue to be collected," "[t]he charge effective date 

which will be the first day of a month which is at least 60 days from the date the public 

agency notifies the carriers," "[tjhe proposed charge ej^iration date," "[a] copy of the 

Admim'strator's notice of approval^" and "[tJhe address where remittances and reports are to 

be filed." 14 C.F.R. § 158.43(a), (b); 

^ 

Regulation revision effective June 29,2000, re-worked, but did not substantively change, legal procedure supra. 

V2 39yd 9Ni>iyw3nna JO SOIJJO 9^05^92202 L<=>-ZI 0i02/iT/e0 
Page Three 

November 26, 2007 

2. MAC'S written notice to air carriers of Second PFC Application Amendment No. 1 for 

($5,688,000) less dollars (94-02-C-Ol-MSP) containing, inter alia, "changes in the charge 

expiration date." 14 C.F.R. § 158.43(c); 

3. MAC's written notice to air carriers of Second PFC Application Amendment No. 2 for 

$18,846,000 additional dollars (94-02-C-02-MSP) containing, inter alia, "changes in the 

charge eiipiration dale." 14 C.F.R. § 158.43(c); 

4. MAC'S written notice to air carriers of Second PFC Application Amendment No. 3 for 

$14,556,569 additional dollars (94-02-C-03-MSP) containing, inter alia, "changes in the 

charge expiration date." 14 C.F.R. § 158.43(c). " 

Repository: We believe the requested records should be on file with: 

Mr. Robert A. Huber, 

Manager - Airports District Office 

Federal Aviation Administration 

6020 28"'" Avenue South (Room 102) 

Minneapolis, MN 55450-2706 

Sincerely, 

^ioui^^^^M^ 

Guy Heide 

Secretary 

S0 39yd 9Ni>iyw3nnd JO 30IJJ 0 SA0Si92202 ^S:£:T 0I02/iI/e 0 
a 

U.S. Department 

Of Transportation 

Fed«ral Aviation 

Admlnistratton 

Great Lakes Region 

23Q0 E. Devon Avenua 

Des Raines. Illinois 6001B 

il)E€Sl2DS7 

CERTIFIED MAIL 

Mr. Guy Heide, Secretary 

Airport Noise Reduction Committee 

881 BluebiU Drive 

Mendota Heights, Minnesota 55120 

Freedom of Mbimation Request 

Document No. 2008-001086GL 

Dear Mr. Heide: 

Pursuant to your letter of November 26,2007 conceming the Metropolitan Aiiports 

Commission (MAC) written notice to air carriers for the second PFC application 

(94-02-C-OO-MSP) and Amendments Nos. 1,2, and 3, enclosed are copies totaling 29 pages 

that respond to your request. This PFC application was closed on September 8,2006, at which 

time the Minneapolis Airports District 0£5ce found the a^lication to be physically and 

financially complete. The records we are providing include MAC's written notice to the 

carriers, dated August 31,1994, for PFC Application 94-02-C-OO-MSP, and MAC's written 

notice to the carriers, dated January 29 and 31,2001, for Amendment No. 3 (94-02-C-O3-

MSP). We do not have copies of MAC's notice to carriers for Amendment Nos. 1 and 2 (94-

02-C-Ol-MSP and 94-02-C-02-MSP); public agencies are not required to provide these to us 

for amendments. We are enclosing copies of our approval for Amendment Nos. 1 and 2. 

As the documentation you are seeking was generated by fltie Metropolitan Airports 

Commission, in the fiiture we encourage you to request such documentation directly firom 

them. 

Under Part 7 of the Department of Transportation Regulations, there is no charge for these 

documents. 

pp^-^eri AlJes 

Manager 

Aiiports Division 

Enclosures 

GASD 

90 3Dyd 9Ni>iyw3-ina jo 30IJJO 

PETITIONERS' 

EXHIBIT 

Si0SZ.92202 Z.9:EI 0I02/Z.T/E0 
Januar y 10, 2008 

Guy Heide, Secretaiy 

Airport Noise Reduction Committee 

881 Bluebill Drive 

Mendota Heights, MN 55120 

Phone: 651-454-7440 

I n r e Freedo m o f Informatio n Ac t Respons e 200S-001086G L 

VIA FACSIMILE SERVICE TO 847-294-7036 & 

CERTIFIED FIRST CLASS U.S MAIL 

i 

Jeri AUes, Manager-Airports Ejivision 

Federal Aviation Administratioin 

Great Lakes Region i 

2300 East Devon j 

Des Plaines, IL 60018 | 

Dear Division Manager AUes: : 

This is in response to FAJA'S December 21 , 2007, Freedom of Information Act {"FOIA"] 

response, given over your name (Exhibit 1, injra]. 

I FOIA REQUEST 

On November 26, 2007, Airport Noise Reduction Committee (ANRC) requested following 

reasonably-described records:; 

1. MAC'si written notice to s ^ carriers of Second PPC Application imposing $113,064,000 (94-

02-C-OO-MSP) containing Tat a minimum" the following information: *[t]he level of PFC to be 

imposed," "(tlhe total revepue to be collected," 'Itjhe charge effective date which will be the 

first day of a month which is at least 60 days from the date the public agency notifies the carriers," "(t]he proposed chg|rge expiration date," "[aj copy of the Administrator's notice of approval," and "[tlhe address where remittaxices and reports are to be filed." 14 C.F.R. § 

158.43(a), (b): ' 

2. MAC'S written notice to .air carriers of Second PFC Application Amendment No, 1 for 

($5,688,000) less dollars {^4-02-C-Ol-MSP) containing, inter aUa, ^changes in the charge expiration date." 14 C.F.R. § 15a.43(c); 

3. MAC'S written notice to jair carriers of Second PPC Application Amendment No. 2 for 

$18,846,000 additional d,bllars (94-02-C-02-MSP) containing, inter alia, "changes in the 

charge expiration date." 14 C.F.R. § 158.43(c); 

4. MAC'S written notice to lair carriers of Second PFC Application Amendment No. 3 for 

$14,556,569 additional djoUars (94-02-C-03-MSP) containing, inter alia, "changes in the 

charge ejipiration date," 14 C.F.R. § 158.43(c). 

1 'MAC" stands for Metropolitajn Airports Commission, 'public agency" at Minneapolis-St. Paul 

International Airport (MSP) underiPassenger Facility Charge (PFC) statute at 49 U.S.C. § 40117 and 

PFC regulations at 14 C.F.R. Part ps . 

^*t^^ 

PETITIONERS' 

EXHIBIT 

O 

I 

12 39yd 9NI>iyW3nnd JO 3DIJJ 0 5^05^92202 IS'-Zl 2\2ZIL\IZ 2 
Page Two 

January 10, 2008 

I FAA RESPONSE 

FAA assigned ANRC's FOL^ request control number 2008-001086GL and responded on 

December 21, 2007. FAA resj^onse did not include POIA requests Nos. 2 and 3, supra (two 

Second PFC AppKcation charge expiration date change notices). See Exhibit 1, infra. 

_>^LLEGED FAA NONFEASANCE 

FAA defends non-production of FOIA requests Nos. 2 and 3, supra, by claiming "pubUc 

agencies are not required to provide these [PFC charge expiration date change notices] to us 

for amendments" (Exhibit 1, infra). ANRC respectfully disagrees with this legal position. 

Second PPC Application initial charge expiration date was February 28, 1998. In 1998, 

MSP monthly PFC revenues r^ge d from $3 roLllion to $4 million. Wherefore, Second PFC 

Application Amendment No. |l's ($5,688,000) reduction would reasonably change PFC 

charge expiration date, supra, by one month (at a minimum). Similarly, Second PFC Application Amendment No. 2*s $18J846,000 increase would reasonably change PFC charge expiration date, supra, by five monljhs (at a minimum). 

Metropolitan Airports Corcfmission (MAC) is MSP "public agency," within meaning of 

Part 158 PFC regulations. MAC oertiiied compliance "with all provisions of 14 CFR part 

, 158." 14 C.F.R. § 158 Appendijs: A at B.2. Since Part 158 clearly mandates 'public agency" 

must "notify carriers * * * of changes in the [PFC] charge expiration date" and "provide a 

copy of the [PFC] notification tp the appropriate FAA Airports ofQce," MAC had clear, nondiscretionary legal duty to notify air carriers of PFC charge expiration date changes flowing 

from Second PFC Application amendments and 'copxf FAA on these notices. 14 C.F.R. § 

158.43(c)(d) (emphasis added), j 

Since legal procedure, sxjpx^a, mandated MAC "copy" FAA on all PFC charge expiration 

date change notices and since FAA has legal duty of care to enforce all PFC regulations at 

MSP, FAA should reasonably ppoduce FOIA requests Nos. 2 and 3, supra (two Second PFC 

Application charge ejqpiration date change notices). 

I CONCLUSION 

FOIA mandates reasonablypdescribed FAA records be made "promptiy available to any 

person." 5 U.S.C. § 552(a)(3)(.^)(ii). Wherefore, ANRC respectfully requests FAA promptiy 

produce FOIA requests Nos. 2 and 3, supra (two Second PFC AppKcation charge expiration 

date change notices). FAA legfil position {viz., public agencies are "not reqxiired' to copy 

FAA on PFC charge expiration c^ate change notices) is arguably but a pretext. 

A prompt response to my attention at the address sapra would be appreciated. 

Sincerely, i 

Guy Heiae ; 

Enclosure: I 

Exhibit 1 - Letter to Guy Heide (ANRC) from Jeri Alles (FAA), December 21, 2007 

I 

9NI>iyW3"ina JO 30IJJ G 5^05^.92202 i5:e i 0I02/iI/£ 0 
e 

U.S. Department 

of TransportoHon 

Federal Aviation 

Admlnistrcrflon 

Great Lakes Region 

2300 E. Devon Avenue 

Des Plaines. Illinois 60016 

DE€2l2t 

CERTIEEED MAIL ! 

I 

Mr. Guy Heide, Secretary i 

Airport Noise Reduction Comniittee 

881 Bluebill Drive ! 

Mendota Heights, Minnesota j5 5120 

I Freiedom of Moraiation Request 

i Document No. 200S-001086GL 

Dear Mr. Heide: 

Pursuant to your letter of November 26,2007 concemitig the Metropolitan Aiiports 

Commission (MAC) written notice to air cairiexs for the second PFC application 

(94-02-C-OO-MSP) and Amendments Nos. 1,2, and 3, enclosed are copies totaling 29 pages 

that respond to your request. JThis PFC application was closed on September 8,2006, at which 

time the Minneapolis Aiiports District OfSBce found the application to be physically and 

financially complete. Thcreqords we are providing include MAC's written notice to the 

carriers, dated August 31,19^4, for PFC Application 94-02-C-OO-MSP, and MAC's written 

notice to the carriers, dated January 29 and 31, 2001, for Amendment No. 3 (94-02-C-03-

MSP). We do not have copiep of MAC's notice to carriers for Amendment Nos. 1 and 2 (94-

02-C-Ol-MSP and 94-02-C-02-MSP); public agencies are not required to provide these to us 

for amendments. We are enplosing copies of our approval for Amendment Nos. 1 and 2. 

As the documentation you are seeking was generated by the Metropolitan Airports 

Commission, in the future we, encourage you to request such documentation directly from 

them. I 

Under Part 7 of the Departm^t of Transportation Regulations, there is no charge for these 

documents. 

|rj.,^'^eri Alles 

Manager 

Airports Division 

Enclosures 

EXHIBIT 

:2i3i 

B0 39yd 9Ni>iyw3ina JO JOIJJ O 5i05Z.92202 i5:EI 0I02/i:.T/£0 
o 

U.S. Ddpoftment | Great Lakes Region 

Of Transportation 1 2300 E. Devon Avenus 

, '^'*P«i'^"'^ I Dee Plaines. ll(lnol$ 60018 

Pederol Aviation | 

Admlnistrafjon I 

i 

JAN 2 5 2008 

CERTIFIED MAIL 

Mr. Guy Heide, Secretary | 

Airport Noise Reduction Committee 

881 Bluebill Drive { 

Mendota Heights, Minnesota 55120 

j Freedom of Information Request 

Revision to Document No. 2008-00IO86GL 

j 

Dear Mr. Heide; i 

I 

This is a revision to our response dated December 21,2007 to include the required appeals 

process paragraph. The enclosures (29 pages) were provided with the initial response. 

i 

Pursuant to your letter of November 26,2007 conceming the Metropolitan Airports 

Commission (MAC) written notice to air carriers for the second PFC application (94-02-C-OOMSP) and Amendments Nos' 1,2, and 3, enclosed are copies totaling 29 pages that respond to 

your request. This PFC application was closed on September 8, 2006, at which time the 

Minneapolis Airports District Office found the application to be physically and financially 

complete. The records we ai[e providing include MAC's written notice to the carriers, dated 

August 31,1994, for PFC Application 94-02-C-OO-MSP, and MAC's written notice to the 

canriers, dated January 29 anfi 31,2001, for Amendment No. 3 (94-02-C-03-MSP). 

We do not have copies of MJVC's notice to carriers for Amendment Nos. 1 and 2 

(94-02-C-Ol-MSP and 94-0:^-C-02-MSP); pubhc agencies are not required to provide these to 

us for amendments. We are enclosing copies of our approval for Amendment Nos. 1 

and 2. ! 

As the documentation you are seeking was generated by the Metropolitan Aiiports 

Commission, in the future we encourage you to request such documentation directiy firom 

them. i 

Under Part 7 of the Department of Transportation Regulations, there is no charge for these 

documents. i 

You may request reconsideration of this detemiination by writing the Assistant Administrator 

for Region and Center Operajtions, ARC-1, Federal Aviation Administration, 800 Independence 

Avenue SW, Washington, DC, 20591. 

I PETITIONERS' 

I EXHIBIT 

H^:i> i D 

0T 39yd 9NI>iyW3nna JO 3DIJJ 0 5^05^.92202 L5'Z I 2\2Z!L\IZ 2 
The application must be madje in writing within 30 days from receipt of this letter and must 

include all information and arguments relied upon. Your letter must state that it is an appeal 

from the above-described denial of the request made under the FOIA. The envelope containing 

the appeal should be marked r'FOIA". 

Sincerely, 

•X-^i2y<-' 

Bairy D. Cooper 

Regional Administrator 

Great Lakes Region 

(^ i^s 

II 39yd 9Ni>iyw3"ina JO JOIJJO 5Z.0Si92202 iS:EI 0I02/iI/£0 
February 21,2008 

Guy Heide, Secretary 

Airport Noise Reduction Committee 

881 BluebiU Drive 

Mendota Heights, MN 55120 

Phone: 651-454-7440 

VIA CERTIFIED U.S. MAIL 

Assistant Administrator 

for Regions & Center Operations (ARC-1) 

Federal Aviation Administration 

800 Independence Avenue SW 

Wasliington, DC 20591 

Dear Assistant Administrator: 

1- This is an appeal of a denial by Bairy D. Cooper (hereinafter, "Cooper") for production of the following two federal records on a request founded upon the Freedom of 

InformaxionAct (FOIA): 

• MAC'S written notice to air carriers of Second PFC Application Amendment No. 1 for 

($5,688,000) less dollars (94-02-C-Ol-MSP) containing, inter alia, "changes in the 

charge expiration date." 14 C.F.R. § 158.43(c); 

• MAC'S written notice to air carriers of Second PFC Application Amendment No. 2 for 

$18,846,000 additional dollars (94-02-C-02-MSP) containing, inter alia, 'changes in the 

charge expiration date." 14 C.F.R. § 158.43(c); 

2- Denial is reported as Exhibit 1, irifra. Cooper's denial is substantially similar to 

earlier FOIA denial by Jeii AUes (hereinafter, "AUes"). reported as Exhibit 2, infra. 

Pursuant to 49 C.F.R. §§ 7.21(c), 7.21(d), these "no records" determinations are appealed, and information and arguments reHed upon are submitted infra. 

ISSUE ON APPEAL 

^- Whether Alles or Cooper abused discretion or acted contrary to law in refusing 

to produce reasonably described federal records under the FOLA. 

STATEMENT OF FACTS 

•*- In return for authority to collect a passenger facility charge (PFC), public agency 

must certify compliance "with all provisions of 14 CFR part 158." 14 C.F.R. § 158 Appendix A at B.2. 

5- MiimeapoUs-St. Paul International Airport (MSP) received approval to implement the Second PFC Application, Thereafter, Amendment No. 1 and, later. Amendment No. 2 each substantially changed Second PFC's charge expiration date. Esdubit 

9Nixyw3-ina jo soujo 

PETITIONERS' 

EXHIBIT 

g 

SA0Si92202 0e:fl 0I02/iI/£0 
Page Two 

February 21, 2008 

4, infra at 2 pax. 3. Each Second PFC expiration date change triggered 14 C.F.R. §§ 

158.43(c) and 158.43(d), which law mandates pubhc agency give notice of a changed 

PFC charge expiration date to air carriers with "a copy of the notification to the appropriate FAA Airports office." On November 26, 2007, Airport Noise Reduction Committee (ANRC) submitted FOIA request for these two federal records, viz., air carrier PFC 

charge expiration date change notices relating to Amendment Nos. 1, 2 supra. Exhibit 

3, infixL 

6- In December 21, 2007, letter to Guy Heide (ANRC), AUes refused to produce 

these two federal records for the sole reason "public agencies are not required to provide these [air carrier PFC charge expiration date change notices] to us [FAA] for 

amendments." Exhibit 2, infra. 

7- In January 10, 2008, letter to Alles, ANRC sought production of these two reasonably described federal records citinjg 14 C.F.R. §§ 158.43(c) and 158.43(d): 

Since legal procedure, supra, mandated [public agency) "copy* FAA on all PFC charge 

expiration date change notices and since FAA has legal duty of care to enforce aH PFC regulations at MSP, FAA should reasonably produce FOIA requests [the two denied requests in 

paragraph 1]. Exhibit 4, inJra at 2 par. 5. 

8- In January 25, 2008^ letter to Guy Heide (ANRC), Cooper, reiterating "public 

agencies are not required to provide these [air carrier PFC charge expiration date 

change notices] to u s [FAA] for amendments," affirmed FOIA deiaial, adding appeals 

process language. Exhibit 1, infra. 

STATEMENT OF LAW 

9- Law mandates public agency must "notify carriers "* * * of changes in the [PFC] 

charge expiration date" and "provide a copy of the [PFC] noti/ication to the appropriate 

FAA Airports office.' 14 C.F.R. §§ 158.43(c) and 158.43(d) (emphasis added). 

10- Discretion is "a range of choice" and "abuse of discretion" occurs "^vhen a relevant factor that should have been given significant weight is not considered [or] when 

an irrelevant or improper factor is considered and given significant weight." Kem v. 

TXO Production Corp., 738 F.2d 968, 970 (8* Cir. 1984). 

1^-Mandamus lies where federal officials are "abusing their discretion or acting 

contrary to law [citation omitted]." Jeno's v. Commissioner of Patents & Trademarks, 

498 F.Supp. 472, 476 (U.S.D.C, D.MN. 1980). Mandamus also lies when federal officials have "statutoiy obligations owing to plaintiffs." Andujar v. Weinberger, 69 F.R.D. 

690, 694 (U.S.D.C, S.D.N.Y. 1976). 

12- Under Freedom of Information Act, reasonably described records must be made 

"promptly available to any person." 5 U.S.C. § 552(a)(3)(A)(ii). 

13- Under Fake Statemjents Accountability Act, "(wjhoever, in any matter within the 

jurisdiction of the executive * * * branch of the Govemment of the United States, knowingly and willfuUy — (1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact; (2) makes any materiaUy false, fictitious, or fraudulent statement 
Page Three 

February 21, 2008 

or representation * * * shall be fined under this titie or imprisoned not more than 5 

years, or both." 18 U.S.C. § 1001. 

ARGUMENT 

14. AUes' and Cooper's FOIA denials both rely on identical factor, fiz., "pubhc agencies are not required to provide these [air carrier PFC charge expiration date change 

notices] to us [FAA] for amendments"—see paragraphs 6,8. 

15- AUes' and Cooper's reliance is clearly misplaced. PubUc agencies are legaUy required to "copy" FAA Airports office on each and every air carrier PFC charge expiration date change notice—see paragraph 9. Wherefore AUes and Cooper abused discretion in giving sigrdficant weight to an "improper factof {viz., the false finding that "pubUc agencies are not reqiaired to provide these [air carrier PFC charge expiration date 

change notices] to us [FAA] for amendments"), and rvot gimng 'significant weight' to a 

relevant factor (viz., legal requirement at 14 C.F.R. §§ 158.43(c) and 158-43(d) that notice of changed PFC charge expiration dates must be given air carriers with "a copy of 

the notification to the appropriate FAA Airports ofBce"). See Kem precedent in paragraph 10. 

16. AUes' and Cooper's FOIA denials are contrary to law in that the plain language 

of 14 C.F.R. §§ 158.43(c) and 158.43(d) dearly requires that FAA Airports office receive 

copies of each and every air carrier PPC charge expiration date change notice. AUes' 

and Cooper's interpretation of 14 C.F.R. §§ 158.43(c) and 158.43(d) would make this 

law meanin^ess—see paragraph 9. 

1 "7- It is further aUeged AUes or Cooper acted contrary to law in working violations 

of False Statements Accountability Act. 

Concerning Alles, it is first alleged that on December 21, 2007, in or about the city of Des 

Plaines, Illinois, Alles knowingly and willfully used a FOIA denial as a "device" to conceal a 

material fact conceming a matter within the jiirisdiction of the executive branch of the 

United States govemment. AUes reasonably had knowledge that public agencies jnust give 

air carriers notice of changed PFC charge expiration dates with "a copy of the notification to 

the appropriate FAA Airports office." 14 C.F.R. §§ 158.43(c) and 158.43(d), Wherefore, it is 

aUeged AUes, when stating "pubUc agencies are not required to provide these [air carrier 

PFC charge expiration date change notices] to us [FAA] for amendments" in a FOIA denial 

(see paragraph 6), used that FOIA denial as a "device" to conceal a material fact, viz., a legal 

duty of care entrusted to Alles under 14 C.F.R §§ 158,43(c) and 158.43(d as FAA ManagerAirports Division, thereby working a violation of 18 U.S.C. § 1001(a)—see paragraph 13. 

Evidence documenting allegation is infra as Exhibit 2. 

Conceming AUes, it is further aUeged that on December 21, 2007, in or about the city of 

Des Plaines, Illinois, AUes kno-sringly and wiUfuUy made a materiaUy false statement conceming a matter within the jurisdiction of the executive branch of the United States government. AUes reasonably had knowledge that pubUc agencies must give air carriers notice of changed PFC charge expiration dates with "a copy of the notification to the appropriate FAA Airports office." 14 C.F.R §§ 158.43(c) and 158,43(d). Wherefore, it is aUeged 

AUes, when stating "pubhc agencies are not required to provide these (air carrier PFC 

charge expiration date change notices] to us [FAA] for amendments" made a materiaUy false 

statement that worked a violation of 18 U.S.C. § 1001(a)—see paragraph 13. Evidence 

documenting aUegation is infra as Exhibit 2. 

9NI>1W3-In&) JO BOIJdO Si0Si92202 0e:fl 0I02/il7£ 0 
Page Four 

February 21 , 2008 

Conceming Cooper, it is first aUeged that on January 25, 2008, in or about the city of Des 

Plaines, Illinois, Cooper knowingly and willfuUy used a FOIA denial as a "device" to conceal 

a material fact conceming a matter within the jurisdiction of the executive branch of the 

United States government. Cooper reasonably had knowledge that pubUc agencies must 

give air carriers notice of changed PFC charge expiration dates with ' a copy of the notification to the appropriate FAA Airports office." 14 C.P.R. §§ 158.43(c) and 158.43(d). Wherefore, it is aUeged Cooper, when stating "public agencies are not required to provide these 

[air carrier PFC charge expiration date change notices] to us [FAA] for amendments" in a 

FOIA denial (see paragraph 8), used that FOIA denial as a "device" to concesd a material 

fact, viz., a legal duty of care entrusted to Cooper under 14 C.F.R. g§ 158.43(c) and 

158.43(d as FAA Regional Administrator, therety working a violation of 18 U.S.C. § 

1001(a)—see paragraph 13. Evidence documenting aUegation is infra as Exhibit 1. 

Conceming Cooper, it is further aUeged that on January 25, 2008, in or about the city of 

Des Plaines, Illinois, Cooper knowingly and wiUfally made a materiaUy false statement concerning a matter within the jurisdiction of the executive branch of the United States government. Cooper reasonably had knowledge that pubUc agencies must give air carriers notice of changed PFC charge expiration dates with "a copy of the notification to the appropriate FAA Airports office." 14 C.F.R. §§ 15S.43(c) and 158.43(d). Wherefore, it is aUeged 

Cooper, when stating "public agencies are not required to provide these [air carrier PFC 

charge expiration date change notices] to us [FAA] for amendments" made a materiaUy false 

statement that worked a violation of 18 U.S.C. § 1001(a)—see paragraph 13. Evidence 

documenting aUegation is infra as Exhibit 1. 

REOUESTED RELIEF 

18- As to FOIA denials a t Exhibits 1, 2 infra, ANRC requests FAA come into comphanc e with 14 C.F.R. §§ 158.43(c) an d 158.43(d), and make the two reasonably de -

scribed federal records "promptiy available." 5 U.S.C. § 552(a)(3)(A)(ii). 

^^- As to aUegations in paragraph 17, to hold federal officials accountable unde r 

the law, ANRC respectfuUy requests Secretaiy of Transportation expeditiously relate 

this information aUeging potential violations of federal criminal law to th e Attorney 

General for investigation an d possible criminal charges. 

Sincerely, 

^^l^eijle^ ^ 

Guy Heide 

Exhibit 1 - Letter to Guy Heide (ANRC) from Barry D. Cooper (FAA), January 25, 2008 

Exhibit 2 - Letter to Guy Heide (ANRC) from Jeri AUes (FAA), December 21, 2007 

Exhibit 3 - Letter to Mary Kay Hewlett (FAA) from Guy Heide (ANRC), November 26, 2007 

Exhibit 4 - Letter to Jeri AUes (FAA) from Guy Heide (ANRC), January 10, 2008 

^0 39Wd 9Ni>iyw3nna do 3DIJJ0 5^05^93202 ©eit^i 0T02/iT/£0 
1^ 

o 

U.S. Department Great Lakes Region 

of Transportation P^°J-P^^°?„'*^'^*'^"^ 

Des Plalnss, Illinois eoolB 

Fodsrol Avfdtion 

Administration 

JAN % 5 2008 

CERTIFIED MAIL 

Mr. Guy Heide, Secretary 

Airport Noise Reduction Committee 

8S1 BluebiU Drive 

Mendota Heights, Minnesota 55120 

Freedom of Infonnation Request 

Revision to Document No. 2008-001086GL 

Dear Mr, Heide: 

This is a revision to our response daled December 21,2007 to include the required appeals 

process paragraph. The enclosures (29 pages) were provided with the initial response. 

Pursuant to your letter of November 26,2007 conceming the Metropolitan Airports 

Commission (MAQ written notice to air carriers for the second PFC application (94-02-C-OOMSP) and Amendments Nos. 1, 2, and 3, enclosed are copies totaling 19 pages that respond to 

your request. This PFC application was closed on September 8,2006> at which time the 

Minneapolis Airports District Office foimd the application to be physically and financiaUy 

complete. The records we are providing include MAC's i^Titten notice to the carriers, dated 

August 31,1994, for PFC Application 94-02-C-OO-MSP, and MAC's written notice to tiie 

carriers, dated January 29 and 31, 2001, for Amendment No. 3 (94-02-C-03-MSP). 

We do not have copies of MAC's notice to carriers for Amendment Nos. 1 and 2 

(94-02-C-Ol-MSP and 94-02-C-02-MSP); public agencies are not required to provide these to 

us for amendments. We are enclosing copies of our approval for Amendment Nos. I 

and 2. 

As the documentation you are seeking was generated by flie Metropolitan Aiiports 

CommissiorL, in the future we encourage you to request such documentation directiy fi-om 

them. 

Under Part 7 of the Department of Transportation Regulations, there is no charge for these 

documents. 

You may request reconsideration of this determination by writing the Assistant Administrator 

for Region and Center Operations, ARC-1, Federal Aviation Administration, 800 Independence 

Avenue SW, Washington, DC, 20591. FOIA REQUESTOR'S 

EXHIBIT 

?r> ^1 

'' ^^''^ SNI>1W3nnd dO 3DIJdO 3^09.93203 0£:t.I 0I03/iT/£0-
The appUcation must be made in writing within 30 days from receipt of this letter and must 

include aU information and arguments relied upon. Your letter must state that it is an appeal 

from the above-described denial of the request made under the FOIA. The envelope containing 

the appeal should be marked 'FOIA". 

Sincerely, 

Barry D. Cooper 

Regional Administrator 

Great Lakes Region 

L2 39tfd 9NI>1W3iny JO 3DIdJ0 9.05.93303 0£:frT 0X03/.T/£0 
o 

U.S. Department 

of Transportation 

Federal Aviation 

Administration 

Great Istkha Region 

2300 £, Devon Avenue 

D«s Plaines, Illinois 6001S 

CERiltlED MAIL 

Mr, Guy Heide, Secretaiy 

Airport Noise Reduction Committee 

881 BluebiU Drive 

Mendota Heights, Minnesota 55120 

Freedom of loformation Request 

Document No. 2008-001086GL 

Dear Mr. Heide: 

Pursuant to your letter of November 26,2007 concemiag the Metropolitan Airports 

Commission (MAC) written notice to air carriers for tiie second PFC application 

(94-02-C-OO-MSP) and Amendments Nos. 1,2, and 3, enclosed are copies totaling 29 pages 

that respond to youx request. This PFC application was closed on September 8, 2006, at which 

time the Minneapolis Airports District OfBce found ihe application to be physically and 

financially complete. The records we are providing include MAC's written notice to the 

caniers, dated August 31,1994, for PFC Application 94-02-C-OO-MSP, and MAC's written 

notice to the earners, dated January29 and 31,2001, for Amendment No. 3 (94-02-C-03-

MSP). We do not have copies of MAC's notice to carriers for Amendment Nos. 1 and 2 (94-

02-C-Ol-MSP and 94-02-C-02'.MSP); public agencies are not required to provide these to us 

for amendments. We are enclosing copies of our approval for Amendment Nos. 1 and 2, 

As the documentation you are seeldng was generated by the Metropolitan Aiiports 

Commission, in the future we encourage you to request such documentation directiy froin 

them. 

Under Part 7 of the Department of Transportation Regulations, there is no charge for these 

documents. 

Sincerely, 

fff .M^^eri AH&s 

Manager 

Airports Division 

Enclosures 

80 39tfd 

FOIA REQUESTOR'S 

EXHIBIT 

9Ni>iww3nna jo 30IJJO S.0S.93303 0£:fT 0T03/.T/£0' 
FOIA REQUESTOR'S 

EXHIBIT 

^3 

November 26,2007 

Guy Heide, Secretary 

Aiipon Noise Reduction Committee 

881 Bluebill Drive 

MoDdota Heists. MN 55120 

Phone! 651-454-7440 (Home) 

Fbone: 952-54S-5925 (Work) 

Fax; 952-548-5930 

Freedom of Information Act (FOIA) Request 

VIA FACSIMILE SERVICE TO 847-294-7184 

& FIRST CLASS U.S. MAIL 

Ms. Mary Kay Howlert 

Federal Aviation Administration 

Great Lakes Region 

2300 East Devon Avenue 

Des Plaines, IL 60018 

DearMs. Howlett 

We make the foUowiag request for govenunent inforaiation pursuant to the Freedom oflnformatian Act 

('TOlA"), which requires reasonably described records to be made "promptly available to any perBoo" 

[5 U.S.C. § 552(a)(3XA)(ii)]. 

Format; Paper 

Fee category: Other requestor 

Max. fee 

able to pay: 

Fee waiver 

Describe 

request: 

$50.00 (although we believe this infonnation should be furnished at no charge, see infra) 

While this FOIA request oflfers to pay a maadmum fee of $50.00, since the public interest and 

benetit in producing the reasonably described govemment records is likely to contribute 

significantly to public uoderstandmg of the passenger facility charge ("PFC") program at 

Minneapolis-St Paul Intemanonal Airport ("MSP*^ we believe the reasonably described ' 

govemment records should be produced at "at no charge,*" pursuant to the FOIA's "public 

interest" fee exemption^ at 5 U.S.C. § 552(a)(4XA)(iii). 

Tbe 14 C.F.R. Part 15 S regulations set forth the relevant legal procedures governing FAAadministered PFC programs. 

MSP is a "commercial service airport," "covered airport," and 'Medium or large hub airporT 

as defined at 14 CJ.R. § Ibt^.'i. MSP is owned and operated by the Metropolitan Aiiports 

Commission ('MAC"). MAC is a "public agency" as defined at 14 C.F.R. § 158.3. In 

applying for authority to collect and use PFC reveoues, MAC certified coir^liance with 

"Assurances" in 14 C.F.R. § 158 Appendix A. 

' In addinon to the '^ubhc iuteresf' fee exemption, no fee may be charged "if the costs of routine collection 

and processing of the fee are likely to equal or exceed the amount of the fee" or "for the first two hours of search 

time or for the first one hundred pages of dupUcation." [5 U.S.C. §§ 552(aX4XA)(iv)(I), 552(aX4)(A)(ivXII)3. 

60 3Dyd 9NI>1W3iny 30 301330 Si0S.93303 0e:fc.I 0T03/.l/£;0 
Page Two 

November 26, 2007 

On May 13, 1994, FAA approved MAC's Second PFC Application for $115,064,000, assigning 

FAA control number 94-02-C-OO-MSP. 

On S^tember 19, 1996, FAA approved MAC's Second PFC Application Amendment No. 1 for 

($5,688,000) less dollars, assigning FAA control number 94-02-C-Ol-MSP. 

On December 29, 1997, FAA approved MAC'S Second PFC Application Amendment No. 2 for 

$18,846,000 additional dollars, assigning FAA control number 94-02-C-02-MSP. 

On January 24,2001, FAA approved MAC's Second PFC Application Amendment No. 3 for 

$14,556,569 additional dollars, assigning FAA confrol number 94-02-C-03-MSP. 

Legal procedure required MAC give air carriers written notice of initial imposition of Second 

PFC Application, which notice must contain "at a minimuiD" die following infonnation: "[tJhe 

level of PFC to be imposed," "Mhe total revenue to be collected," "[t]he charge effective date 

which will be tb.e first day of a month wbich is at least 60 days from the date d»e public agency 

notificB tie caniers," "[t]he proposed charge expiration date," "[&] copy of the Administrator's 

notice of approval," and "[t]he address where remittances and reports are to be filed." 14 

C.F.R. § 158,43(a), (b). L^al procedure also required MAC provide FAA Airports office "a 

copy of the [Second PFC Application] notification" to air carriers imposing $113,064,000, 14 

CJJL § 158.43(d). 

Thereafter, then-current legal procedure required MAC notify air carriers and FAA "in writing" 

of 14 CJJR, § 158.37(a) amendments C'changes") unilaterally implemented by MAC, subject to 

the limitation "[a]ny new charge will be efifective on the first day of a mon^ which is at least 60 

days from the time the public agency notifies the carriers," and include "changes in the charge 

expiration dale." 14 C.F-R. §§ 15S.37(B); 158.43(c), (d). 

Such legal procedure required MAC notiiy air carriers and FAA of the "effective date" of 14 

C.F.R, § 158,37(b) amendments, subject to the limitation "any new charge shall be no earlier 

than die first day of a month which is at least 60 days from the time the public agency notifies 

the carriers," and include "changes in the charge expiration date." 14 C.F.IL §§ 158.37(b)^; 

158.43(c), (d). 

Based on the foregoiag, FAA Airports office should have on file MAC's Second PFC 

Applicatjon notice to air carriers imposing $113,064,000 and MAC's air carrier notices of 

Second PFC Application Amendments Nos. 1-3. 'Wherefore, we respectfully request production 

of the foIlovkTng reasonably-described records: 

1. MAC'S written notice to air carriers of Second PFC Application imposing $113,064,000 

(94-02-C-DO-MSP) containing "at a minimum" the foUowing information: "[i]be level of 

PFC to be imposed," "[t]he total revenue to be collected," "[t]he charge effective date 

which will be the first day of a month which is at least 60 da>'S from the date the public 

agency notifies the carries," "[t]he proposed charge expiration date," "[a] copy of the 

Administrator's notice of ^proval," and "[t)he address where remittances and reports are to 

be filed." 14 C.F.R, § 158.43(e), (b); 

' RegulatioB revision effective Juno 25*, 2000. re-worked, but did not substantively chaagt, legal procedure supra. 

^^ 3^^^ 9NI>1W3ina 30 301330 SZ0SZ93303 0£:t.T 0I03/ii/e0 
Page Three 

Koveniber26,2007 

2. MAC'S written nodce to air carriers of Second PFC Application Amendment No, 1 for 

(£5,688,000) less dollars C94-02-C-01-MSP) conUining, inter alia, "changes in the charge 

expiration date," 14 C.F.R. § 158.43(c); 

3. MAC'S written notice to air carriers of Second PFC Application Amendment No. 2 for 

$18,846,000 additional dollars (94-02-C-02-MSP) containing, inter alia, "changes in the 

charge expiration date." 14 C.F.R. § 15S.43(c); 

4. MAC'S written notice to air carriers of Second PFC Application Amendment No. 3 for 

$14,556,569 additional dollars (94-02-C-03-MSP) containing, inter alia, "changes in the 

charge expiration date." 14 CFJt § 158,43(c). • 

Repositorj" We believe the requested records should be on file with: 

Mr. Robert A. Huber, 

Manager - Airports District Office 

Federal Aviation Administration 

6020 28"^ Avenue South (Room 102) 

Minneapolis, MN 55450-2706 

Sincerely, 

Guy Heide 

Secretary 

If 4 3 

^^ ^^^'^ 9NI>iyW3nny 30 301330 <^jacjQ7ycy r.c~.. 

Si0Si93303 0£:fT 0I03/iT/e 0 
January 10, 2008 

Guy Heide, Secretary 

Airport Noise Reduction Committee 

881 Bluebill Drive 

Mendota Heights, MN 55120 

Phone: 651-454-7440 

In r e Freedom of Information Act Respons e 3008-00lOSSGrL 

VIA FACSIMILE SERVICE TO 847-294-7036 SB 

CERTIFIED FIRST CLASS U.S. MAIL 

Jeri AUes, Manager-Airports Division 

Federal Aviation Administration 

Great Lakes Region 

2300 East Devon 

Des Plaines, IL 60018 

Dear Division Manager Alles: 

This is in response to FAA's December 21, 2007, Freedom of Information Ad ("FOIA") 

response, gben over your name (Exhibit 1, infra). 

FOIA REQUEST 

On November 26, 2007, Airport Noise Reduction Committee (ANRC) requested following 

reasonably-described records: 

1. MAC'si written notice to air carriers of Second PFC Application imposing $113,064,000 (94-

02-C-OO-MSP) containing 'at a miiumTim" the following information: "[t]he level of PPC to be 

imposed," 'ItJhe total revenue to be collected," "[tjbe cbarge effective date which wiU be the 

first day of a month which is at least 60 days from the date the public agency notifies the carriers," "[t]he proposed charge escpiration date," '[a] copy of the Administrator's notice of approval," and "[tJhe address where remittances and reports are to be filed." 14 C.F.R. § 

158.43(a). (b); 

2. MAC'S written notice to air carriers of Second PPC Application Amendment No. I for. 

($5,688,000) less doUars (94-02-C-Ol-MSP) containing, inter alia, 'changes in the charge expiration date." 14 C,P.R. § 158.43(c); 

3. MAC'S written notice to air carriers of Second PPC AppUcation Amendment No. 2 for 

$18,846,000 additional dollars (94-02-C-02-MSP) containing, inter alia, "changes in the 

charge expiration date." 14 C.F.R, § lS8.43(c); 

4. MAC'S written notice to air carriers of Second PFC Application Amendment No. 3 for 

$14,556,569 additional dollars (94-02-C-03-MSP| containing, inier alia, 'changes in the 

charge expiration date." 14 C.F.R. § 158.43(c). 

1 *MAC" stands for Metropolitan Airports Commission, "public agency" at Miru:ieapolis-St. Paul 

Intematianal Airport (MSP) under Passenger Facility Charge (PFC) statute at 49 U.S.C. § 40117 and 

PFC regulations at 14 C.F.R. Part 158. 

FOIA REQUESTOR'S 

EXHIBIT 

^1 

30 3Dyd SNiMwanna 30 301330 5^05^.93303 xre'.^i 2\2ZIL\IZ2 
Page Two 

January 10, 2008 

FAA RESPONSE 

FAA assigned ANRC's FOIA request control number 2008-001086GL and responded on 

December 21, 2007. FAA response did not include FOIA requests Nos. 2 and 3, supra (two 

Second PFC Application charge expiration date change notices). See Exhibit 1, infra. • 

ALLEGED FAA NONFEASANCE 

FAA defends non-production of POIA requests Nos. 2 and 3, supra, by claiming "pubhc 

agencies are not required to provide these [PFC charge expiration date change notices] to us 

for amendments" (Exhibit 1, irfrd). ANRC respectfully disagrees with this legal position. 

Second PFC Application initial charge expiration date was February 28, 1998, In 1998, 

MSP monthly PFC revenues ranged from $3 million to $4 million. Wherefore, Second PPC 

Apphcalion Amendment No. I's ($5,688,000) reduction would reasonably change PPC 

charge ea^iration date, supra, by one month (at a minimum). Similarly, Second PFC Application Amendment No, 2's $18,846,000 increase would reasonably change PFC charge expiration date, supra, by five months (at a mirn'mTim). 

Metropolitan Airports Commission (MAC) is MSP "pubhc agency," within meaning of 

Part 158 PPC regulations. MAC certified compliance Vit h all provisions of 14 CFR part 

158." 14 C.F.R. § 158 Appendix A at B.2. Since Part 158 clearly mandates "pubhc agency" 

must "notify carriers * * * of changes in the [PFC] charge expiration date" and "provide a 

copy of the [PFC] notification to the appropriate FAA Airports office," MAC had clear, nondiscretionary legal duty to notify air carriers of PFC charge expiration date changes flovidng 

from Second PFC Application amendments and "copTf FAA on these notices. 14 C.F.R. § 

158.43(c)(d) (emphasis added). 

Since legal procedure, supra, mandated MAC "copy" FAA on all PFC charge expiration 

date change notices and since FAA has legal duty of care to enforce all PFC regulations at 

MSP, FAA should reasonably produce FOIA requests Nos. 2 and 3, supra (two Second PFC 

Application chaise eacpiration date change notices). 

CONCLUSION 

FOIA mandates reasonably-described FAA records be made "promptly available to any 

person." 5 U.S.C, § 552(a)(3)(A)(ii). Wherefore, ANRC respectfiilly requests FAA promptly 

produce FOIA requests Nos. 2 and 3, supra (two Second PFC Application charge expiration 

date change notices). FAA legal position {viz., public agencies are "not required" to copy 

FAA on PFC charge expiration date change notices) is arguabfy but a pretext. 

A prompt response to my attention at the address supra would be appreciated. 

Sincerely, 

Guy Heike 

Enclosure: 

Exhibit I - Letter to Guy Heide (ANRC) from Jeri Alles (FAA), December 21, 2007 

(n_ijH) 

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^ 

U.S, Department Great Lakes Region 

Df TtansportBlton 23°*^ E- Devon Avanue 

Dee Plainea, Illinois 6001B 

Fsdorol Aviation 

AdmlnishoHon 

iOE€ 21,2067 

CERTIFIED MAIL 

Mr. Guy Heide, Secretary 

Airport Noise Reduction Comniittee 

881 Bluebill Drive 

Mendota Heights, Minnesota 55120 

Freedom of Infonnation Request 

Document No, 2008-001086GL 

Dear Mr. Heide: 

Pursuant to your letter of November 26,2007 conceming fhe Metropolitan Airports 

Commission (MAC) wiitteo notice to air carriers for the second PFC application 

(94-02-C-OO-MSP) and Amendments Nos. 1,2, and 3, enclosed are copies totaling 29 pages 

(hat respond to your request. This PFC application was closed on September 8,2006, at which 

time the Minneapolis Aiiports District Office found the application to be physically and 

financially complete. The records we are providing include MAC's written notice to the 

earners, dated August 31,1994, for PFC Application 94-02-C-OO-MSP, and MAC'S written 

notice to the carriers, dated January 29 and 31,2001, for Amendment No. 3 (94-02-C-03-

MSP). "We do not have copies of MAC's notice to carriers for Amendment Nos. 1 and 2 (94-

02-C-Ol-MSP and 94-02-C-02-MSP); public agencies are not required to provide these to us 

for amendments. We are enclosing copies of our approval for Amendment Nos. I and 2. 

As Ihe documentatioii you are seeking was generated by the Metropolitan Airports 

Commission, in the future we encourage you to request such documentation directly from 

them. 

Under Part 7 of the Department oflYansportation Regulations, there is no charge for these 

documents. 

ppi^^eri AUes 

Manager 

Aixport. Division ^^^ ^ 

Enclosures »l 

c3S 

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o 

lie ^^/,>n^.<»^n4. AsBisUntAdministrater for Regions 

US^epoirrnem and Center Operations 

ot Ttansportatfon 8D0 Independence Ava.. SW. 

Federal Aviation Washington, DC 20591 

Administration 

MAR : ' ...".'i ' 

Mr. Guy Heide 

881 Bluebill Drive 

Mendota Heights, MN 55120 

Dear Mr. Heide: 

Re: Freedom of Infonnation Act (FOIA) appeal 2008-001086AN 

This letter is in response to yoiu: administrative appeal under the FOIA of a no records 

determination made by the Regional Administrator for the Great Lakes Region for records 

relating to Passenger Facility Charge (PFC) applications firom the Metropolitan Airports 

Commission (MAC). The Federal Aviation Administration (FAA) provided 29 pages of 

records, in response to your request However, FAA was not able to locate MAC's written 

notice to air carriers of Second PFC Application Amendments Nos. 1 and 2 and issued a no 

records response for that portion of your request. 

You appealed that determination on February 21, 2008. On appeal you raise many issxies 

that cannot be addressed under the FOIA. Please be advised that the FOIA allows access to 

records held by federal agencies. The FOIA is not a vehicle to compel an agency to perform 

its mission or to discipline its employees. 

The issue on appeal is whether the agency has performed a reasonable search calculated to 

find the requested records. Your request was for MAC'S written notice to air carriers of 

Second PFC Application Amendments Nos. 1 and 2 for the Miuneapolis-St. Paul 

International Airport. Those PFC files are stored in the FAA's Minneapolis Airports 

District Office. The manager of that office searched both the files associated with the 

specific PFC, and general files maintained for all PFCs at Minne^olis-St Paul International 

Airport. MAC's notice to air carriers of Second PFC Application Amendments Nos. 1 and 2 

were not located. 

I believe a prudent search has been conducted and fliere are no other places within the FAA 

where responsive records are likely to be found. I believe, therefore, that agency personnel 

have made the reasonable search for responsive records required by law. See e.g., Odesbv 

v. Department of the Armv. 920 F,2d 57 (D.C, Cir. 1990). 

I am the person responsible for this decision. This is the final administrative action that will 

be taken on your appeal. If you are not satisfied with this decision, you may appeal it to the 

United States district court for the district in which you reside or have your principal place 

PETITIONERS' 

EXHIBIT 

f 

52 39Vd DNI>1W3ina dO 301330 5^09^.93303 fEit-T 0T03//!.T/£0 
of business, the district in which the records are kept, or for the District of Columbia. This 

action has the categorical concurrence of the General Counsel of the Department of 

Transportation. 

Sincerely, 

I J Assistant Administrator for 

Regions and Center Operations 

( S ^ 

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