Steel Institute of New York v. City of New York, No. 12-276 (2d Cir. 2013)
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The Steel institute appealed the district court's grant of the City's motion for summary judgment and dismissal of its complaint, which alleged that the City's regulation of cranes and other hoisting equipment was preempted by federal law. The court granted some weight to OSHA's view in reaching its conclusion that local regulatory schemes such as the City's crane regulations have the aim and primary effect of regulating conduct to secure the safety of the general public, rather than the safety of workers in the workplace. Therefore, the City's crane regulations were saved from preemption as laws of general applicability and the court affirmed the judgment.
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12-276-cv Steel Institute of New York v. City of New York 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2012 (Argued: December 20, 2012 Decided: May 7, 2013) Docket No. 12-276 - - - - - - - - - - - - - - - - - - - -x STEEL INSTITUTE OF NEW YORK, Plaintiff-Appellant, - v.CITY OF NEW YORK, Defendant-Appellee. - - - - - - - - - - - - - - - - - - - -x Before: JACOBS, Chief Judge, CALABRESI and SACK, Circuit Judges. The Steel Institute of New York appeals the judgment of 31 the United States District Court for the Southern District 32 of New York (McMahon, J.), which granted the City of New 33 York s cross-motion for summary judgment and dismissed the 34 complaint, alleging that the City s regulation of cranes and 35 other hoisting equipment is preempted by federal law. 36 the following reasons, we affirm. For 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 BRIAN A. WOLF, Smith, Currie & Hancock, LLP, Fort Lauderdale, Florida (J. Daniel Puckett, Smith, Currie & Hancock, LLP, Atlanta, Georgia, on the brief), for Appellant. TAHIRIH M. SADRIEH (Edward F. X. Hart and Karen Selvin, on the brief), for Michael A. Cardozo, Corporation Counsel of the City of New York, New York, New York, for Appellee. M. Patricia Smith, Solicitor of Labor, U.S. Department of Labor, Washington, D.C. (Joseph M. Woodward, Charles F. James, and Allison G. Kramer, on the brief), for the Secretary of Labor as Amicus Curiae in Support of Appellee. DENNIS JACOBS, Chief Judge: The Steel Institute of New York, advancing the 28 interests of the construction industry, sues the City of New 29 York challenging local statutes and regulations that govern 30 the use of cranes, derricks, and other hoisting equipment in 31 construction and demolition. 32 that they are preempted by the Occupational Safety and 33 Health Act (the Act ) and federal standards promulgated by 34 the Occupational Safety and Health Administration ( OSHA ). 35 The United States District Court for the Southern District The Steel Institute argues 2 1 of New York (McMahon, J.) dismissed the suit on summary 2 judgment. We affirm. 3 4 5 I The Steel Institute sought declaratory and injunctive 6 relief invalidating the City regulations listed in the 7 margin1 on the grounds that they are preempted by the Act 8 and OSHA s regulations, violate the dormant Commerce Clause, 9 and violate the Steel Institute s procedural and substantive 10 11 due process rights. Cross-motions for summary judgment were stayed pending 12 the ongoing amendment of OSHA s crane regulations, which 13 were published August 9, 2010, and went into effect November 14 8, 2010. 15 statement on federalism, which referenced this lawsuit and 16 disclaimed preemption of any non-conflicting local or 17 municipal building code designed to protect the public from 18 the hazards of cranes. 19 Construction, 75 Fed. Reg. 47,906, 48,129 (Aug. 9, 2010). 20 The cross-motions were re-filed with addenda dealing with The preamble of the amended regulations added a Cranes and Derricks in 1 N.Y.C. Admin. Code §§ 28-3316.1-.6, .7.1-.8, 3319.1, .3-.8.7, .8.8(3)-(4), .8.8(6)-(7), .9-.9.2; Reference Standard 19-2 §§ 3.0-8.1, 9.0, 10.0, 13.1-21, 22.2-30.0. See J.A. 2. 3 1 the amendments. 2 curiae brief in the district court in support of the City s 3 position, as it has here. 4 The Department of Labor filed an amicus The district court granted the City s cross-motion for 5 summary judgment in December 2011, chiefly relying on Gade 6 v. National Solid Wastes Management Ass n, 505 U.S. 88 7 (1992). 8 Supp. 2d 310, 320-32 (S.D.N.Y. 2011). 9 recognized that the City regulations directly and See Steel Inst. of N.Y. v. City of N.Y., 832 F. Although the court 10 substantially regulate worker safety and health in an area 11 where an OSHA standard exists (which usually would trigger 12 preemption), the court concluded that the City regulations 13 are saved from preemption under Gade because they are laws 14 of general applicability. 15 deference was given to the Secretary of Labor s 16 interpretation of the preemptive effect of the Act and the 17 OSHA regulations. 18 summarily dismissed the Commerce Clause and due process 19 claims. 20 challenges only the ruling on preemption. 21 22 Id. at 323-27. Id. at 328. Id. at 332-37. [C]onsiderable The district court also The Steel Institute s appeal We review de novo an order granting summary judgment, drawing all factual inferences in favor of the non-moving 4 1 party. Costello v. City of Burlington, 632 F.3d 41, 45 (2d 2 Cir. 2011). 3 no genuine dispute as to any material fact and the movant is 4 entitled to judgment as a matter of law. 5 56(a). Summary judgment is appropriate when there is Fed. R. Civ. P. No material fact is at issue in this case. 6 7 8 9 II The federal government regulates worker safety through the Occupational Safety and Health Act, which is 10 administered by OSHA. 11 authorizes promulgation of occupational safety or health 12 standards, id. § 655, that are reasonably necessary or 13 appropriate to provide safe or healthful employment and 14 places of employment, id. § 652(8). 15 our analysis that the Act does not protect the general 16 public, but applies only to employers and employees in 17 workplaces. 18 See 29 U.S.C. §§ 651-78. The Act It is significant to See, e.g., id. § 651(b)(1). In the absence of a federal standard, the Act allows 19 states to regulate occupational safety or health issues. 20 Id. § 667(a). 21 state may submit a State plan for the Secretary s approval 22 by which the state assume[s] responsibility for development If there is a federal standard in place, a 5 1 and enforcement of occupational safety and health standards 2 in the area covered by the federal standard. 3 (c). 4 Id. § 667(b)- OSHA has promulgated regulations concerning the use of 5 cranes, derricks, and hoisting equipment: 29 C.F.R. § 1926 6 Subpart CC governs Cranes and Derricks in Construction, 7 and Subpart DD governs Cranes and Derricks Used in 8 Demolition and Underground Construction. 9 standards apply to power-operated equipment, when used in 10 construction, that can hoist, lower and horizontally move a 11 suspended load, including various types of cranes, 12 derricks, trucks, and other hoisting equipment. 13 § 1926.1400(a). The federal 29 C.F.R. 14 Among other things, the federal rules regulate: 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 ¢ ground conditions that support cranes and similar equipment, id. § 1926.1402; ¢ procedures and conditions for design, assembly, disassembly, operation, testing, and maintenance of the machinery, id. §§ 1926.1403, .1417, .1412, .1433; ¢ proximity of the equipment to power lines during assembly, operation, and disassembly, id. §§ 1926.1407-.1411; ¢ proximity of employees to the machinery and hoisted loads, id. §§ 1926.1424-.1425; ¢ signaling between workers, id. §§ 1926.1419-.1422; 6 1 2 3 4 ¢ fall protection for workers, id. § 1926.1423; and ¢ worker qualification, certification, and training, id. §§ 1926.1427-.1430. 5 OSHA has authority to enter and inspect regulated worksites, 6 and may enforce the regulations through citations, monetary 7 penalties, criminal penalties, and by seeking injunctive 8 relief. See, e.g., 29 U.S.C. §§ 662, 666. 9 10 11 III The City s crane regulations2 are part of the Building 12 Code and are enforced by the New York City Department of 13 Buildings ( DOB ). 14 -201.3. 15 which includes the Building Code,] is to provide reasonable 16 minimum requirements and standards . . . for the regulation 17 of building construction in the city of New York in the 18 interest of public safety, health, [and] welfare . . . . 19 Id. § 28-101.2. See N.Y.C. Admin. Code §§ 28-101.1, The purpose of [the City s construction code, 20 The statutes at issue in this case are codified in 21 Chapter 33 of the Building Code, which concerns Safeguards 22 During Construction or Demolition. 2 At the outset, Chapter Although the City regulations are referenced in this opinion as crane regulations, they apply to other equipment as well, including derricks and hoists. 7 1 33 delineates its scope: The provisions of this chapter 2 shall govern the conduct of all construction or demolition 3 operations with regard to the safety of the public and 4 property. 5 employed in construction or demolition operations, OSHA 6 Standards shall apply. 7 For regulations relating to the safety of persons Id. § 28-3301.1. In the district court, the City adduced evidence of 8 local accidents caused by cranes, derricks, and other 9 hoists. J.A. 134-97. For the period 2004 through 2009, the 10 City cited fifteen instances of hoisting equipment failures 11 that caused injury to twenty-seven members of the public and 12 fifteen workers, and the deaths of one member of the public 13 and eight workers. 14 a DOB engineer, the district court found that because New 15 York City is the most densely populated major city in the 16 United States, construction worksites necessarily abut, or 17 even spill over into adjoining lots and public streets. 18 Steel Inst., 832 F. Supp. 2d at 314. 19 a unique risk to public safety in New York City--at least 20 when they are used away from isolated commercial or 21 industrial yards. J.A. 136. Relying on a declaration from Id. 22 8 Cranes therefore pose 1 Generally, the City requires that hoisting equipment 2 be installed, operated, and maintained to eliminate hazard 3 to the public or to property. 3 4 § 28-3316.2. 5 include: 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 N.Y.C. Admin. Code Specific requirements on hoisting equipment ¢ following an accident, the owner or person in charge of hoisting equipment must immediately notify the DOB and cease operation of the equipment, id. § 28-3316.3; ¢ hoisting equipment must: be designed, constructed, and maintained in accordance with DOB rules; be approved by the DOB; and display appropriate permits, id. §§ 28-3316.4-.5, .8; ¢ hoist ropes must be regularly inspected and replaced in accordance with DOB rules, id. § 28-3316.6; and ¢ operators of hoisting equipment must be qualified to operate the equipment and must lock it before leaving, id. § 28-3316.7. 21 A separate set of requirements applies more specifically to 22 cranes and derricks. 23 requirement that [n]o owner or other person shall authorize 24 or permit the operation of any crane or derrick without a 25 certificate of approval, a certificate of operation and a See id. § 28-3319. 3 These include a The City regulations apply broadly to hoisting equipment, defined as [e]quipment used to raise and lower personnel and/or material with intermittent motion. N.Y.C. Admin. Code § 28-3302.1. That includes power operated machine[s] used for lifting or lowering a load, including but not limited to a crane, derrick, cableway and hydraulic lifting system, and articulating booms. Id. 9 1 certificate of on-site inspection. 2 also id. § 28-3319.4-.6. 3 do not apply to cranes or derricks used in industrial or 4 commercial plants. 5 Id. § 28-3319.3; see The crane and derrick requirements Id. § 28-3319.3(6). Even more stringent requirements are imposed on tower 6 and climber cranes.4 7 contraptions, a licensed engineer must submit a detailed 8 plan for erection, jumping, climbing, and dismantling. 9 Id. § 28-3319.8.1. See id. § 28-3319.8. For these Before operating such a crane, the 10 general contractor must conduct a safety coordination 11 meeting with a licensed engineer, the crane operator, and 12 other designated individuals. 13 addition, the DOB publishes Reference Standards ( RS ) 14 governing this equipment.5 Id. § 28-3319.8.2. In 4 A tower crane is a crane that is mounted on a vertical mast or tower, and a climber crane is a crane supported by a building that can be raised or lowered to different floors of the building. Id. § 28-3302. 5 For example, RS 19-2 regulates the design, construction, and testing of power operated cranes and derricks. Mobile cranes constructed prior to October 2006 must comply with standards promulgated by the American National Standards Institute ( ANSI ) in 1968. RS 19-2 § 4.1.1; see ANSI Standard B30.5 (1968). Mobile cranes constructed after October 2006 must comply with one of two standards promulgated in 2004. RS 19-2 § 4.1.2; see ANSI Standard B30.5 (2004); European Comm. for Standardization CEN EN 13000 (2004). 10 1 To enforce this regulatory scheme, the DOB issues a 2 stop-work order if it finds that any crane, derrick, or 3 hoisting machine is dangerous or unsafe. 4 In sum, the City s statutes and regulations provide a 5 comprehensive framework to regulate the design, 6 construction, and operation of cranes, derricks, and other 7 hoisting equipment in the City. RS 19-2 § 9.1. 8 9 IV 10 The Steel Institute argues that the City s crane 11 regulations are preempted by the Act and OSHA regulations 12 because they impose occupational health and safety standards 13 in an area where federal standards already exist. 14 responds that its regulations are not preempted under the 15 analysis in Gade v. National Solid Wastes Management Ass n, 16 505 U.S. 88 (1992), and that, even if they are, they are 17 saved by the exception afforded by Gade for laws of general 18 applicability. 19 Preemption can be either express or implied. The City Id. at 20 98. 21 preemption (if the federal scheme is so pervasive as to 22 displace any state regulation in that field) or conflict Implied preemption may take the form of field 11 1 preemption (if state regulation makes compliance with 2 federal law impossible or otherwise frustrates the 3 objectives of Congress). 4 P ship v. Town of Clarkstown, 612 F.3d 97, 104 (2d Cir. 5 2010) (per curiam). 6 Id.; see also N.Y. SMSA Ltd. There is a strong presumption against preemption when 7 states and localities exercise[] their police powers to 8 protect the health and safety of their citizens. 9 Medtronic, Inc. v. Lohr, 518 U.S. 470, 475, 484-85 (1996). 10 Because of the role of States as separate sovereigns in our 11 federal system, we have long presumed that state laws . . . 12 that are within the scope of the States historic police 13 powers . . . are not to be pre-empted by a federal statute 14 unless it is the clear and manifest purpose of Congress to 15 do so. 16 (2000) (Stevens, J., dissenting); see also N.Y. SMSA Ltd. 17 P ship, 612 F.3d at 104. 18 persons is one of the traditional uses of the police power, 19 which is one of the least limitable of governmental 20 powers. 21 82-83 (1946). Geier v. Am. Honda Motor Co., 529 U.S. 861, 894 Protection of the safety of Queenside Hills Realty Co. v. Saxl, 328 U.S. 80, 22 12 1 Here, New York City has exercised its fundamental 2 police power to protect public safety, but has done so by 3 regulating an area where federal occupational standards 4 exist. 5 statutes regulating the licensing and training of employees 6 who work with hazardous waste. 7 issue was whether the Illinois regime was preempted by OSHA 8 regulations on Hazardous Waste Operations and Emergency 9 Response, which included training requirements for 10 Gade controls. In that case, Illinois enacted hazardous waste workers. Gade, 505 U.S. at 91. The Id. at 92. 11 The Court characterized the Illinois laws as dual 12 impact statutes because they protect[ed] both workers and 13 the general public. 14 held that the Act displaced conflicting state rules through 15 implied conflict preemption (there being no express 16 preemption in the Act).6 17 plurality op.). 18 concluded that it precludes any state regulation of an 19 occupational safety or health issue with respect to which a 20 federal standard has been established, unless a state plan Id. at 91. A plurality of the Court Id. at 98-99 (O Connor, J., Viewing the Act as a whole, the Court 6 Justice Kennedy s separate concurrence opined that the Act expressly preempts state occupational safety and health standards. Id. at 111-12 (Kennedy, J., concurring). 13 1 has been submitted and approved pursuant to § 18(b). 2 at 102. 3 Id. The Gade Court rejected the state s argument that dual 4 impact statutes are not preempted. 5 Although part of the pre-empted field is defined by 6 reference to the purpose of the state law in 7 question, . . . another part of the field is defined by the 8 state law s actual effect. 9 Gen. Elec. Co., 496 U.S. 72, 84 (1990)) (emphases added). 10 Accordingly, a state law that constitutes, in a direct, 11 clear and substantial way, regulation of worker health and 12 safety is preempted under the Act. 13 quotation marks omitted). 14 Id. at 104-05. Id. at 105 (quoting English v. Id. at 107 (internal Critically, the Court recognized an exception for state 15 and local regulations that are of general applicability. 16 Id. 17 were primarily directed at workplace safety, they were not 18 laws of general applicability and therefore succumbed to 19 preemption. 20 But the Court held that because the Illinois statutes Id. at 107-08. The New York City crane regulations are unquestionably 21 dual impact regulations. 22 intended to protect public safety and welfare. For the most part, they are 14 See N.Y.C. 1 Admin. Code § 28-101.2. 2 accident risks posed by cranes, derricks, and other hoisting 3 equipment. 4 J.A. 134-97. 5 designed to protect the safety of the general public in the 6 vicinity of cranes and other hoisting equipment. 7 RS 19-2 § 23.3.5 (prohibiting loads from being carried over 8 occupied buildings unless top two floors are evacuated). 9 The risk to the public in New York City is substantial and 10 11 There is considerable evidence of See, e.g., Steel Inst., 832 F. Supp. 2d at 314; Many of the provisions are specifically See, e.g., palpable.7 That is the purpose of the City regulations; we must 12 also gauge their effect. 13 effect, the regulations protect worker health and safety in 14 a direct, clear and substantial way. 15 example, Section 3316.7 of the Building Code provides that Gade, 505 U.S. at 105. 7 In their Id. at 107. For During Hurricane Sandy in October 2012, a crane collapsed and dangled over West 57th Street in Manhattan for nearly a week. See, e.g., Charles V. Bagli, As Crane Hung in the Sky, a Drama Unfolded to Prevent a Catastrophe Below, N.Y. TIMES, Nov. 6, 2012. Public accounts suggest that City DOB inspectors had found problems with the crane s wire ropes in the months before the accident and halted work on the site for over a week in September 2012. Kerry Burke et al., Crane Collapse in Midtown Manhattan as Hurricane Sandy Storms into the East Coast, N.Y. DAILY NEWS, Oct. 29, 2012. And it was City DOB inspectors who were on site to inspect the crane after it was repaired. Josh Barbanel, High Drama With Crane Comes to an End, WALL ST. J., Nov. 4, 2012. 15 1 only designated, specially qualified workers may operate 2 hoisting equipment. 3 Similarly, the regulations require that a detailed plan be 4 submitted for the use of tower or climber cranes, and a 5 safety meeting must be held before a crane is jumped. 6 § 28-3319.8. 7 safety of those near and around construction sites, the 8 direct and immediate effect is to protect workers at the 9 site. 10 See N.Y.C. Admin. Code § 28-3316.7. Id. While these restrictions protect the general The federal standards here--on Cranes and Derricks in 11 Construction and Cranes and Derricks Used in Demolition 12 and Underground Construction --regulate the same things, 13 i.e., the use of power-operated equipment, including 14 cranes, derricks, and other hoisting equipment, when used 15 in construction. 16 regulations may employ different means, but they nonetheless 17 constitute regulation of an occupational safety or health 18 issue with respect to which a federal standard has been 19 established. 20 City s crane regulations are preempted unless they are saved 21 from preemption as laws of general applicability. 29 C.F.R. § 1926.1400(a). Gade, 505 U.S. at 102. 22 16 The City Under Gade, the 1 Gade exempts from preemption state laws of general 2 applicability (such as laws regarding traffic safety or fire 3 safety) that do not conflict with OSHA standards and that 4 regulate the conduct of workers and nonworkers alike. 5 U.S. at 107. 6 protects workers cannot fairly be characterized as [an] 7 occupational standard[] if it regulate[s] workers simply 8 as members of the general public. 9 at workplace safety will not be saved from preemption. 10 The Gade exception saves the City regulations from 505 Even a law that directly and substantially Id. But a law directed Id. 11 preemption because they are of general applicability. 12 do not conflict with OSHA standards; at most, the City s 13 regulations provide additional or supplemental requirements 14 on some areas regulated by OSHA. 15 to the conduct of workers and nonworkers alike.8 16 They By their terms they apply Most importantly, the City regulations are not directed 17 at safety in the workplace. 18 laws imposed licensing requirements on hazardous waste In Gade, the preempted state 8 For example, Section 3316.3, which requires that hoisting accidents be reported to the DOB, applies to the owner or person directly in charge of the hoisting equipment. N.Y.C. Admin. Code § 28-3316.3. Similarly, Section 3319.3 requires various certificates for the operation of a crane or derrick and applies to owner[s] or other person[s]. Id. § 28-3319.3. 17 1 equipment operators and laborers working at certain 2 facilities. 3 not saved from preemption as a law of general applicability 4 because it was directed at workplace safety. 5 (emphasis added). 6 language of the Occupational Safety and Health Act, which 7 focuses only on employment performed in a workplace. 8 U.S.C. § 653(a) (emphasis added). 9 the Act help reduce the number of occupational safety and 505 U.S. at 93 (emphasis added). That law was Id. at 107 Gade s holding reflects the plain 29 Congress intended that 10 health hazards at their places of employment. 11 § 651(b)(1) (emphasis added); see also id. § 654 (requiring 12 employers to furnish employees with a place of employment 13 free from hazards). 14 Id. New York s crane regulations, by contrast, apply all 15 over the City, not just in workplaces or construction sites. 16 As the district court found, New York City is always 17 undergoing construction, and construction risks are by no 18 means confined to a single building or lot.9 19 can be as tall as 1800 feet, and move loads as heavy as 825 20 tons, do not confine themselves to the property on which 9 Cranes, which When a person hoists a piano into his attic, the risk is between him and his piano; if he hoists it above a pulsing avenue, the risk is not contained and the peril is of a general kind. 18 1 they are being used when they break, or worse, collapse; 2 they inevitably damage surrounding buildings and risk 3 injuring people in their homes and on the street. 4 Inst., 832 F. Supp. 2d at 314 (internal citation omitted). 5 A salient feature of the City s regime is that crane 6 activity confined to a workplace is expressly excluded from 7 the scope of the City regulations: the regulations do not 8 apply to cranes or derricks used in industrial or 9 commercial plants or yards (unless used for construction of Steel 10 the facility itself). 11 City regulations therefore are directed at public safety 12 even though they achieve this goal, in part and 13 incidentally, by regulating the conduct of workers. 14 N.Y.C. Admin. Code § 3319.3(6). The Police powers that protect everyone in the City will 15 naturally regulate some workers. 16 that protect New Yorkers on a daily basis may bear upon the 17 conduct of workers, but nonetheless can be considered laws 18 of general applicability. 19 a general prohibition on conduct that endangers the 20 populace, such as taxi regulations that protect drivers 21 while protecting passengers and pedestrians. 22 best appreciated by imagining the crowded city without such 23 regulations. Many of the regulations They are specific applications of 19 The point is 1 The Supreme Court cited fire and traffic safety laws as 2 prime examples. 3 local regulation concerning the use of bridges and tunnels 4 by drivers of rigs carrying explosive materials. 5 protect truck drivers, and may specifically protect truck 6 drivers who are moving explosive loads. 7 local regulation is not directed at a workplace: its main 8 concern is the safety of the population, and the security of 9 the infrastructure. Gade, 505 U.S. at 107. Consider a state or OSHA may But the state or A regulated truck driver, like any 10 member of the general public, cannot expose fellow citizens 11 to unreasonable danger. 12 fire codes and traffic laws, are an exercise of the police 13 power to protect the safety of the public in a crowded 14 metropolis.10 The City s crane regulations, like 15 10 A further example: New York s Fire Code regulates the use of welding devices. See N.Y.C. Rules of the Fire Dep t § 2609-01(b). The regulations apply to anyone who picks up a welding torch, and are presumably intended both to protect the welder from injury and to protect New York s dense city blocks from fire. OSHA also regulates welding, but pursuant to its congressional mandate, it does so for the safety and health of covered workers. See Subpart Q-Welding, Cutting and Brazing, 29 C.F.R. § 1910.251-.255. The City s fire safety requirements, although they may directly and substantially protect workers, would be laws of general applicability saved from preemption. See Gade, 505 U.S. at 107. 20 1 The Steel Institute relies heavily on the Eleventh 2 Circuit s decision in Associated Builders & Contractors 3 Florida East Coast Chapter v. Miami-Dade County, 594 F.3d 4 1321 (11th Cir. 2010) (per curiam). 5 standard for tower cranes was held to be preempted by OSHA 6 regulations on the same subject. 7 were binding on us, which of course it is not, the case is 8 distinguishable. 9 measure because in Miami [c]onstruction job sites are Miami s wind-load Id. at 1323. Even if it The ordinance was not a public safety 10 closed to the public and it is undisputed that the 11 Ordinance s wind load standards regulate how workers use and 12 erect tower cranes during the course of their employment. 13 Id. at 1324. 14 to identify a single incident in which a crane accident 15 injured a member of the general public during a hurricane. 16 Id. 17 did not consider whether Miami s ordinance could be saved 18 from preemption as a law of general applicability. 19 It was deemed significant that Miami failed Moreover, although the Eleventh Circuit cited Gade, it Id. In sum, the City s crane regulations are dual impact 20 regulations that affect both public safety and worker 21 conduct. 22 addressing much the same conduct, the City regulations are 23 preempted unless exempt under Gade as laws of general Because there is a federal standard in place 21 1 applicability. 2 applicability, not directed at the workplace, that regulate 3 workers as members of the general public, and are therefore 4 saved from preemption. We conclude that they are laws of general 5 6 7 V The parties dispute whether deference is owed to the 8 Department of Labor s views on whether the City s crane 9 regulations are preempted. We do not defer to an agency s 10 legal conclusion regarding preemption, but we give some 11 weight to an agency s explanation of how state or local 12 laws may affect the federal regulatory scheme. 13 Levine, 555 U.S. 555, 576-77 (2009); see also Geier v. Am. 14 Honda Motor Co., 529 U.S. 861, 883 (2000). 15 accord the agency s explanation of state law s impact on the 16 federal scheme depends on its thoroughness, consistency, and 17 persuasiveness. 18 States v. Mead Corp., 533 U.S. 218, 234-35 (2001), and 19 Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)). 20 Wyeth v. The weight we Wyeth, 555 U.S. at 577 (citing United OSHA cannot tell us whether the City regulations are 21 preempted or whether the Gade exception applies. 22 reassured by OSHA s view--to the extent that it is based on 23 OSHA s long experience in formulating and administering 22 But we are 1 nationwide workplace standards--that the City regulations 2 (and other municipal codes like it) do not interfere with 3 OSHA s regulatory scheme. 4 The preamble to the 2010 amendments of OSHA s crane 5 regulations specifically references this case and states 6 that the City s crane regulations are not preempted. 7 Fed. Reg. at 48,129. 8 the same position. 9 longstanding OSHA policy. 10 75 The Department, now as amicus, takes That view is consistent with For example, in 1972, OSHA issued a policy statement addressing local fire regulations: 11 12 13 14 15 16 17 18 19 OSHA Policy Statement Concerning State & Local Fire Marshall 20 Activities, at 1 (1972) (cited in Mem. of Law of the 21 Secretary of Labor as Amicus Curiae in Support of Defendant 22 ( Dist. Ct. Amicus Br. ), Att. 3, Steel Inst. of N.Y. v. 23 City of N.Y., No. 09-cv-6539 (S.D.N.Y. Jan. 6, 2011)). 24 Similarly, a 1981 OSHA directive indicated that [s]tate 25 enforcement of standards which on their face are 26 predominantly for the purpose of protecting a class of 27 persons larger than employees would not be preempted, even It is the belief of [OSHA] that it was not Congress intent in passing the Act to preempt these extensive [fire regulation] activities with respect to places of employment covered by the Act. While there is an overlap of jurisdiction in workplaces, [OSHA] feels that the much broader goals of fire marshals activities preclude their being preempted. 23 1 when a federal standard is in place. 2 Preemption on the State Agencies Without 18(b) Plans, at 2 3 (1981) (cited in Dist. Ct. Amicus Br., Att. 4). 4 OSHA, The Effect of In 1992, the United States (on behalf of the Department 5 of Labor) submitted an amicus brief in Gade, advocating the 6 view--partly adopted by the Court--that [a] state law of 7 general applicability that only incidentally affects 8 workers, not as a class, but as members of the general 9 public, cannot fairly be described as an occupational 10 standard. 11 Resp t, at 24 n.14, Gade v. Nat l Solid Wastes Mgmt. Ass n, 12 No. 90-1676 (Mar. 2, 1992) (cited in Dist. Ct. Amicus Br., 13 Att. 5). 14 protection, boiler inspection, or building and electrical 15 code requirements, even though there are OSHA standards on 16 these subjects, because the state standards do not aim to 17 protect workers as a class, and do not have that primary 18 effect. Br. for the U.S. as Amicus Curiae Supporting [The Act] does not typically preempt state fire Id. 19 Although no deference is compelled, we grant some 20 weight to OSHA s view in reaching our conclusion that local 21 regulatory schemes such as the City s crane regulations have 22 the aim and primary effect of regulating conduct to secure 24 1 the safety of the general public, rather than the safety of 2 workers in the workplace. 3 4 The City s crane regulations are saved from preemption as laws of general applicability. 25 The judgment is affirmed.
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