Release of an ICA- safety and intellectual property rights in conflict?

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Court decision could spur US maintenance manual fight

At issue – Instructions for Continued Airworthiness

Should be available but DAH, FAA and Court will not compel delivery

Intellectual Property Rights VS. Safety- same solution needed

Sean Broderick of ATWOnline always finds stories with serious implications for aviation maintenance—with both safety and commercial dimensions. This article unveils a triangular dispute among (i) First Aviation Services, Inc. and its subsidiary Piedmont Propulsion Services, LLC (PPS); (ii) UTC Aerospace Systems (UTAS); and the FAA. The issue is the availability of an Instruction for Continued Airworthiness (ICA) to PPS. The ICA about which this lawsuit was filed was issued by UTAS for one of its products.

 

This review should be premised with a fairly standard procedure between the FAA and companies like UTAS. If a document is submitted to the FAA for review, the government returns it to the applicant after it no longer needs it.

FAR §21.52(b) requires that:

“The holder of a design approval…must furnish at least one set of complete Instructions for Continued Airworthiness to the owner of each type aircraft, aircraft engine, or propeller upon its delivery…”

Further, Order 8110.54AInstructions for Continued Airworthiness Responsibilities, Requirements, and Contents, Chapter 6, ¶4.d. adds:

 

a.     In accordance with 14 CFR § 21.50(b) DAHs must furnish the owner of a type certificated product at least one set of complete ICA.  This rule also requires the DAH to make those instructions available to any person required to comply with the terms of the instructions.  The owner or operator is required to maintain the airworthiness of the product.  Therefore, if the person requesting the ICA is not the product owner or operator, Conditions 1 and 2 below must be met, in addition to meeting either Condition 3 or 4 below before we will require the DAH to make the ICA available to them.

….

(3)  Condition 3 – The requester, a repair station or operating certificate holder, of the ICA is currently rated for the product/part and is required by of 14 CFR, Chapter 1, to comply with ICA for the product/part.  Currently rated is defined as either appropriately class rated for the product or part, or, appropriately limited rated for the product or part and the product or part is on the repair station’s capability list or operations specifications as applicable.  In either case the repair station must meet all other applicable requirements, including 14 CFR §§ 145.109, 145.201, and 145.215.

 

(4)  Condition 4-The requester, an individual, of the ICA is performing work for the product owner or operator under the authority of their mechanic certificate issued under 14 CFR part 65.

Seems straightforward.

So, PPS requested that UTAS provide the ICA needed and it was not provided. Then, the North Carolina Part 145 organization asked the FAA to confirm that the Design Approval Holder must produce the document.  It did. PPS repeated its request to FAA and UTAS in 2016 and 2017—to no avail. It then sought an order from the US Court of Appeals for the District of Columbia.

The Court, according to Mr. Broderick, denied the petition[1], citing “case law saying a federal agency can decide when and how to enforce its own regulations.”

ATW correctly forecast that this decision will likely rekindle the debate between the repair stations and the OEMs/DAHs. The companies, which manufacture the airframes, powerplants or avionics, invest massive amounts of capital into these aviation products. In support of that technology development, the DAHs label many of the documents associated with their maintenance as PROPRIETARY.

Given the increased capability of reverse engineering and precision of laser measurements, the repair stations and PMA organizations can legitimately discern many of the dimensions needed to replicate elements of the OEM’s technology. This is the rub.

PPS wants the FAA to give it the ICA. More than likely, UTAS has explained that the document is proprietary and probably refused to return the ICA.  If the FAA still has the document in question, he FAA must honor Exemption 4 of FOIA, which shelters trade secrets from FOIA requests and may be held liable for improper disclosure.

By asserting an intellectual property right, the DAH placed the FAA in an area of law for which it does not have much experience.  Perhaps if the petitioner sues UTAS directly, a court could resolve this difference of opinion.

The tension between property rights and safety should not be a zero-sum game. Perhaps, the DAH could extract the details which are the most confidential. But those deletions might diminish the ability of the MRO to fully comply with the ICA. What is clear is that the Congress is among the least qualified institutions to determine the right balance between these critical principles.

Collaboration or cooperation among the government, the manufacturer and the repair station would result in a better outcome.

 

[1] Call to Petitioners’ counsel requesting a copy of the full decision was not returned.



 

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