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Legal Memorandum: Authority to Engage Non-governmental Consultants

Issue: Under Minnesota and federal law, to what extent is the government permitted to engage the services of a non-governmental consultant to investigate a public loss in a transportation accident?

Area of Law: Aviation & Transportation Law
Keywords: Non-governmental consultants and experts; Authority to engage; Transport accident
Jurisdiction: Federal, Minnesota
Cited Cases: 198 F.3d 935
Cited Statutes: 49 U.S.C. § 1113(b)(A), (D); 49 C.F.R. §§ 831.2(b), 831.11 (2006); 49 C.F.R. § 831.11(a)(1), § 831.12 (2006);
Date: 11/01/2007

The NTSB has the authority both to work with state and local governments and to procure the use of experts and consultants.  49 U.S.C. § 1113(b)(A), (D); 49 C.F.R. §§ 831.2(b), 831.11 (2006).  The investigator-in-charge has the power to designate “parties” to an investigation.  49 C.F.R. § 831.11(a)(1).  With the party designation comes access not only to documents but also to wreckage:  “Only the [NTSB]’s accident investigation personnel and persons authorized by the investigator-in-charge to participate in any particular investigation, examination or testing shall be permitted access to wreckage, records, mail, or cargo in the [NTSB]’s custody.”  Id., § 831.12 (2006).

It is potentially important to the question of the consultant’s involvement here that persons designated parties by the investigator-in-charge are limited to “persons, government agencies, companies, and associations whose employees, functions, activities, or products were involved in the accident or incident and who can provide suitable qualified technical personnel actively to assist in the investigation.” Id., § 831.11(a)(1) (emphasis added).  The regulation states that “[n]o other entity is afforded the right to participate in Board investigations.”  Id.  Accord Chiron Corp. v. Nat’l Transp. Safety Bd., 198 F.3d 935, 938 (D.D.C. 1999).  This regulation at least raises a question as to under what authority the NTSB’s investigator-in-charge designated the consulting firm as a party to the investigation.

The law is also clear that the “parties participating in an investigation are involved in NTSB processes only to assist the safety mission and not to prepare for litigation.”  Id. at 938 […]

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