State-Level Proprietary Rights Do Not Trump Aviation Safety

by Jason Dickstein, MARPA

In the last issue of Aviation Maintenance, we addressed the rights that repair stations and operators have with respect to Instructions for Continued Airworthiness (ICAs). In this issue we examine — and debunk — one of the most popular arguments opposing the distribution of ICAs.

Some design approval holders have claimed that their ICAs are ”proprietary data” and therefore do not have to be shared. By proprietary data, they typically mean that the data are trade secrets. While this claim sounds interesting, closer scrutiny shows that this claim is often ineffective with respect to ICAs.

As a reminder of last issue’s discussion, we established that the FAA has rules that require design approval applicants to create ICAs. Those rules establish minimum standards for what needs to be in the ICAs. And those ICAs are required to be shared with certain parties, like properly rated repair stations. For more details on what all of this means, please examine last issue’s article.

What is important for this month is that every product has certain minimum required information that is required to be included in the ICAs. That is the information to which properly rated repair stations are entitled.

For example, engines ICAs are required to include “Troubleshooting information describing probable malfunctions, how to recognize those malfunctions, and the remedial action for those malfunctions.” Therefore procedures related to remedial action for probably malfunctions are required to be published in engine ICAs.

We’ve seen ICAs that published instructions that insist that products must be returned to an OEM repair station for remedial action. This sort of limit has been deemed as unacceptable by the FAA in FAA policy guidance.

One justification that we’ve heard for the refusal to provide the regulatorily-required instructions is that the instructions are trade secrets. This is an inadequate excuse for failure to comply with the regulations.

In order for information to be a trade secret, it must be valuable and it must be kept secret. If a federal law requires the disclosure of a trade secret, then it is axiomatic that the trade secret loses its secrecy. Case law makes it clear that a law or regulation may require the disclosure of a trade secret to “promote some public interest,” and where the law does this, the information is no longer a secret.

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