June 18, 2012
The Aeronautical Repair Station Association (ARSA) is asking the U.S. Supreme Court to take on a case to ensure that the FAA enforces its own rules requiring manufacturers to make maintenance instructions available.
The case, AvidAir Helicopter Supply vs. Rolls-Royce, has been in litigation for six years and involves a dispute dating back a decade over AvidAir’s use of Rolls-Royce overhaul procedures for Model 250 engines. Late last year, the Eighth Circuit of the U.S. Court of Appeals upheld a lower court’s finding that Rolls-Royce’s overhaul information qualified as a protected trade secret.
ARSA is not a party to either side in the lawsuit, but filed an amicus curiae (friend of the court) brief to highlight that FAA cannot ignore requirements regarding availability of instructions for continued airworthiness (ICA), says Craig Fabian, VP-regulatory affairs and assistant general counsel for ARSA.
“FAA has not enforced these rules,” Fabian says, adding that if the agency had enforced the requirements, then the parties involved likely would not have had to turn to the courts for resolution.
Regulations call for manufacturers and other design approval holders to make maintenance information available for their products, ARSA says, noting the requirement is designed to ensure aircraft owners have the latest and most recent information for maintaining their aircraft.
But ARSA charges that the agency has ignored cases of non-compliance. “The FAA does not have discretion in enforcing its own rules,” says ARSA Executive Director Sarah MacLeod. “ARSA is simply pointing out that a federal agency must follow its regulations and the federal courts must ensure that the public has redress when an agency chooses to blatantly disregard its own rulemaking.”
“It is . . . critically important for this court to intervene,” ARSA says in its amicus brief, adding that the lower courts have “failed to consider the federal agency’s unwillingness to enforce its regulation requiring design approval holders to make technical information available regarding the performance of maintenance, preventive maintenance or alterations.”
Despite regulatory requirements, “design approval holders have exhibited a reluctance to furnish such information,” ARSA says.
Manufacturers have argued that forcing their release of all technical data would violate intellectual property rights and expose them to liability in cases where unauthorized maintenance providers use the data for repairs. But maintenance providers have countered that manufacturers hold back on release of certain information for economic reasons.