Negligence per se "is based on the violation of a federal safety statute which in itself creates `an actionable wrong, in no way dependent upon negligence.'" Kelly v. Keystone Shipping Co., 281 F. Supp. 2d 313, 317 n. 6 (D. Mass. 2003) (quoting O'Donnell v. Elgin, 338 U.S. 384 (1949)). Plaintiff responds that the First Circuit has not adopted Jones.
Plaintiff seeks to prevent Keolis from relying on comparative negligence because Pratico held that OSHA regulations are considered safety statutes under section 53 and therefore bar Keolis from asserting comparative negligence as a defense. (Docket Entry # 32). Plaintiff also relies on a decision by this court in Kelly v. Keystone, 281 F.Supp.2d 313 (D. Mass. 2003). Keolis again submits that the aisles and passageway OSHA regulation does not apply to the facts of this case.
Plaintiff seeks to prevent Keolis from relying on comparative negligence because Pratico held that OSHA regulations are considered safety statutes under section 53 and therefore bar Keolis from asserting comparative negligence as a defense. (Docket Entry # 32). Plaintiff also relies on a decision by this court in Kelly v. Keystone, 281 F. Supp. 2d 313 (D. Mass. 2003). Keolis again submits that the aisles and passageway OSHA regulation does not apply to the facts of this case.
It is for the court to assess the relevance and weight of sources cited for the legal propositions they offer and to determine the applicable law. See Nieves–Villanueva v. Soto–Rivera, 133 F.3d 92, 99 (1st Cir.1997) ( “[P]urely legal questions and instructions to the jury on the law to be applied to the resolution of the dispute before them is exclusively the domain of the judge.”); see also Kelly v. Keystone Shipping Co., 281 F.Supp.2d 313, 324 (D.Mass.2003) (legislative history “includes the agency's responses to public comments published in the Federal Register”). Ms. Ferreira's motion amounts to a counterargument to Sterling's opposition to her memorandum and is an improper use of a motion to strike, and I will deny it.
As such, despite its legal status, the 2004 Memorandum was a useful tool in assessing when an electronic material becomes a waste. See Kelly v. Keystone Shipping Co., 281 F.Supp.2d 313, 321 n. 14 (D.Mass.2003) (finding that agency's policy letter, though not having the force and effect of law, was useful tool in interpreting regulation). Because a definitional-type instruction, such as that at issue here, need not have the force of law to be included in a jury instruction, the Court finds that its inclusion of the “original intended purpose” language from the 2004 Memorandum was not plain error.
Motion (Dkt. # 18) at 24. For purposes of interpreting an agency's regulations, the agency's responses to public comments published in the Federal Register serve as a sort of legislative history and give insight into the intent of the drafters. See, e.g., Kelly v. Keystone Shipping Co., 281 F. Supp.2d 313, 324 (D. Mass. 2003). The fact that the comments are not legally binding (i.e., they are not rules in and of themselves), does not mean that the ALJ erred when considering the comments for purposes of interpreting the agency's regulations regarding the evaluation of transfer students.
An agency's response to public comments on a proposed regulation is part of the legislative history of the regulation, and "while not conclusive, gives insight into the intent of the drafters." Kelly v. Keystone Shipping Co., 281 F.Supp.2d 313, 324 (D.Mass. 2003). The emphasized language indicates that the drafters of the federal regulations governing collection of overpayments understood and intended that state agencies administering food stamp programs have the authority to forego collection of claims resulting from agency error.
We only found defendant did not satisfactorily comply with 46 C.F.R. § 4.06. To support this proposition he cites Kelly v. Keystone Shipping Company, 281 F.Supp.2d 313 (D.Mass. 2003), a district court case out of Massachusetts. Kelly in turn relies on Pratico v. Portland Terminal Co., 783 F.2d 255 (1st Cir. 1985).