     12-276-cv
     Steel Institute of New York v. City of New York
 1
 2                       UNITED STATES COURT OF APPEALS
 3
 4                           FOR THE SECOND CIRCUIT
 5
 6                              August Term, 2012
 7
 8
 9       (Argued: December 20, 2012                Decided: May 7, 2013)
10
11                              Docket No. 12-276
12
13   - - - - - - - - - - - - - - - - - - - -x
14
15   STEEL INSTITUTE OF NEW YORK,
16
17                     Plaintiff-Appellant,
18
19               - v.-
20
21   CITY OF NEW YORK,
22
23                     Defendant-Appellee.
24
25   - - - - - - - - - - - - - - - - - - - -x
26

27         Before:           JACOBS, Chief Judge, CALABRESI and SACK,
28                           Circuit Judges.
29
30         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.            For

36   the following reasons, we affirm.
 1                                 BRIAN A. WOLF, Smith, Currie &
 2                                 Hancock, LLP, Fort Lauderdale,
 3                                 Florida (J. Daniel Puckett,
 4                                 Smith, Currie & Hancock, LLP,
 5                                 Atlanta, Georgia, on the brief),
 6                                 for Appellant.
 7
 8                                 TAHIRIH M. SADRIEH (Edward F. X.
 9                                 Hart and Karen Selvin, on the
10                                 brief), for Michael A. Cardozo,
11                                 Corporation Counsel of the City
12                                 of New York, New York, New York,
13                                 for Appellee.
14
15                                 M. Patricia Smith, Solicitor of
16                                 Labor, U.S. Department of Labor,
17                                 Washington, D.C. (Joseph M.
18                                 Woodward, Charles F. James, and
19                                 Allison G. Kramer, on the
20                                 brief), for the Secretary of
21                                 Labor as Amicus Curiae in
22                                 Support of Appellee.
23
24
25   DENNIS JACOBS, Chief Judge:
26
27       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.    The Steel Institute argues

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



                                    2
1    of New York (McMahon, J.) dismissed the suit on summary

2    judgment.    We affirm.

3

4                                   I

5        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   due process rights.

11       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.    The preamble of the amended regulations added a

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.”   Cranes and Derricks in

19   Construction, 75 Fed. Reg. 47,906, 48,129 (Aug. 9, 2010).

20   The cross-motions were re-filed with addenda dealing with

          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.   The Department of Labor filed an amicus

2    curiae brief in the district court in support of the City’s

3    position, as it has here.

4        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).   See Steel Inst. of N.Y. v. City of N.Y., 832 F.

8    Supp. 2d 310, 320-32 (S.D.N.Y. 2011).    Although the court

9    recognized that the City regulations directly and

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.”   Id. at 323-27.    “[C]onsiderable

15   deference” was given to the Secretary of Labor’s

16   interpretation of the preemptive effect of the Act and the

17   OSHA regulations.   Id. at 328.    The district court also

18   summarily dismissed the Commerce Clause and due process

19   claims.   Id. at 332-37.   The Steel Institute’s appeal

20   challenges only the ruling on preemption.

21       We review de novo an order granting summary judgment,

22   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).   Summary judgment is appropriate when “there is

3    no genuine dispute as to any material fact and the movant is

4    entitled to judgment as a matter of law.”   Fed. R. Civ. P.

5    56(a).   No material fact is at issue in this case.

6

7                                  II

8        The federal government regulates worker safety through

9    the Occupational Safety and Health Act, which is

10   administered by OSHA.   See 29 U.S.C. §§ 651-78.   The Act

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).   It is significant to

15   our analysis that the Act does not protect the general

16   public, but applies only to employers and employees in

17   workplaces.   See, e.g., id. § 651(b)(1).

18       In the absence of a federal standard, the Act allows

19   states to regulate occupational safety or health issues.

20   Id. § 667(a).   If there is a federal standard in place, a

21   state may submit a “State plan” for the Secretary’s approval

22   by which the state “assume[s] responsibility for development


                                   5
1    and enforcement” of occupational safety and health standards

2    in the area covered by the federal standard.     Id. § 667(b)-

3    (c).

4           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.”     The federal

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.     29 C.F.R.

13   § 1926.1400(a).

14          Among other things, the federal rules regulate:

15          • ground conditions that support cranes and similar
16          equipment, id. § 1926.1402;
17
18          • procedures and conditions for design, assembly,
19          disassembly, operation, testing, and maintenance of the
20          machinery, id. §§ 1926.1403, .1417, .1412, .1433;
21
22          • proximity of the equipment to power lines during
23          assembly, operation, and disassembly, id.
24          §§ 1926.1407-.1411;
25
26          • proximity of employees to the machinery and hoisted
27          loads, id. §§ 1926.1424-.1425;
28
29          •   signaling between workers, id. §§ 1926.1419-.1422;
30

                                     6
1        •     fall protection for workers, id. § 1926.1423; and
2
3        • worker qualification, certification, and training,
4        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                                 III

11       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”).    See N.Y.C. Admin. Code §§ 28-101.1,

14   -201.3.    “The purpose of [the City’s construction code,

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.

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.”    At the outset, Chapter

          2
             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.   For regulations relating to the safety of persons

5    employed in construction or demolition operations, OSHA

6    Standards shall apply.”    Id. § 28-3301.1.

7        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.   J.A. 136.       Relying on a declaration from

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.        “Cranes therefore pose

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.”   Id.

22



                                      8
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   N.Y.C. Admin. Code

4    § 28-3316.2.   Specific requirements on hoisting equipment

5    include:

 6       • following an accident, the owner or person in charge
 7       of hoisting equipment must immediately notify the DOB
 8       and cease operation of the equipment, id. § 28-3316.3;
 9
10       • hoisting equipment must: be designed, constructed,
11       and maintained in accordance with DOB rules; be
12       approved by the DOB; and display appropriate permits,
13       id. §§ 28-3316.4-.5, .8;
14
15       • hoist ropes must be regularly inspected and replaced
16       in accordance with DOB rules, id. § 28-3316.6; and
17
18       • operators of hoisting equipment must be qualified to
19       operate the equipment and must lock it before leaving,
20       id. § 28-3316.7.

21   A separate set of requirements applies more specifically to

22   cranes and derricks.   See id. § 28-3319.   These include a

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


          3
             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.”       Id. § 28-3319.3; see

2    also id. § 28-3319.4-.6.     The crane and derrick requirements

3    do not apply to “cranes or derricks used in industrial or

4    commercial plants.”   Id. § 28-3319.3(6).

5        Even more stringent requirements are imposed on “tower”

6    and “climber” cranes.4   See id. § 28-3319.8.      For these

7    contraptions, a licensed engineer must submit a detailed

8    plan for “erection, jumping, climbing, and dismantling.”

9    Id. § 28-3319.8.1.    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.        Id. § 28-3319.8.2.   In

13   addition, the DOB publishes “Reference Standards” (“RS”)

14   governing this equipment.5



          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.”   RS 19-2 § 9.1.

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.

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.     The City

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.    Id. at

20   98.   Implied preemption may take the form of field

21   preemption (if the federal scheme is so pervasive as to

22   displace any state regulation in that field) or conflict


                                   11
1    preemption (if state regulation makes compliance with

2    federal law impossible or otherwise frustrates the

3    objectives of Congress).   Id.; see also N.Y. SMSA Ltd.

4    P’ship v. Town of Clarkstown, 612 F.3d 97, 104 (2d Cir.

5    2010) (per curiam).

6        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.”    Geier v. Am. Honda Motor Co., 529 U.S. 861, 894

16   (2000) (Stevens, J., dissenting); see also N.Y. SMSA Ltd.

17   P’ship, 612 F.3d at 104.    “Protection of the safety of

18   persons is one of the traditional uses of the police power,”

19   which is “one of the least limitable of governmental

20   powers.”   Queenside Hills Realty Co. v. Saxl, 328 U.S. 80,

21   82-83 (1946).

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.   Gade controls.     In that case, Illinois enacted

5    statutes regulating the licensing and training of employees

6    who work with hazardous waste.         Gade, 505 U.S. at 91.   The

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   hazardous waste workers.      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.”      Id. at 91.     A plurality of the Court

14   held that the Act displaced conflicting state rules through

15   implied conflict preemption (there being no express

16   preemption in the Act).6     Id. at 98-99 (O’Connor, J.,

17   plurality op.).   Viewing the Act as a whole, the Court

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


          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).”        Id.

2    at 102.

3          The Gade Court rejected the state’s argument that dual

4    impact statutes are not preempted.     Id. at 104-05.

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.’”     Id. at 105 (quoting English v.

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.     Id. at 107 (internal

13   quotation marks omitted).

14         Critically, the Court recognized an exception for state

15   and local regulations that are of “general applicability.”

16   Id.   But the Court held that because the Illinois statutes

17   were primarily “directed at workplace safety,” they were not

18   laws of general applicability and therefore succumbed to

19   preemption.   Id. at 107-08.

20         The New York City crane regulations are unquestionably

21   “dual impact” regulations.     For the most part, they are

22   intended to protect public safety and welfare.     See N.Y.C.


                                     14
1    Admin. Code § 28-101.2.     There is considerable evidence of

2    accident risks posed by cranes, derricks, and other hoisting

3    equipment.     See, e.g., Steel Inst., 832 F. Supp. 2d at 314;

4    J.A. 134-97.     Many of the provisions are specifically

5    designed to protect the safety of the general public in the

6    vicinity of cranes and other hoisting equipment.      See, e.g.,

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   palpable.7

11       That is the purpose of the City regulations; we must

12   also gauge their effect.     Gade, 505 U.S. at 105.   In their

13   effect, the regulations protect worker health and safety in

14   a “direct, clear and substantial” way.     Id. at 107.     For

15   example, Section 3316.7 of the Building Code provides that


          7
             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.     See N.Y.C. Admin. Code § 28-3316.7.

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.”       Id.

6    § 28-3319.8.    While these restrictions protect the general

7    safety of those near and around construction sites, the

8    direct and immediate effect is to protect workers at the

9    site.

10       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.”     29 C.F.R. § 1926.1400(a).   The City

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.”    Gade, 505 U.S. at 102.   Under Gade, the

20   City’s crane regulations are preempted unless they are saved

21   from preemption as laws of general applicability.

22



                                     16
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.”      505

5    U.S. at 107.   Even a law that directly and substantially

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.”     Id.   But a law “directed

9    at workplace safety” will not be saved from preemption.      Id.

10       The Gade exception saves the City regulations from

11   preemption because they are of general applicability.     They

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.     By their terms they apply

15   to the conduct of workers and nonworkers alike.8

16       Most importantly, the City regulations are not directed

17   at safety in the workplace.   In Gade, the preempted state

18   laws imposed licensing requirements on “hazardous waste


          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.”   505 U.S. at 93 (emphasis added).    That law was

3    not saved from preemption as a law of general applicability

4    because it was “directed at workplace safety.”     Id. at 107

5    (emphasis added).     Gade’s holding reflects the plain

6    language of the Occupational Safety and Health Act, which

7    focuses only on “employment performed in a workplace.”     29

8    U.S.C. § 653(a) (emphasis added).     Congress intended that

9    the Act help “reduce the number of occupational safety and

10   health hazards at their places of employment.”     Id.

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       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    “Cranes, which

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
             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.”     Steel

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

10   the facility itself).   N.Y.C. Admin. Code § 3319.3(6).    The

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       Police powers that protect everyone in the City will

15   naturally regulate some workers.   Many of the regulations

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.   They are specific applications of

19   a general prohibition on conduct that endangers the

20   populace, such as taxi regulations that protect drivers

21   while protecting passengers and pedestrians.   The point is

22   best appreciated by imagining the crowded city without such

23   regulations.

                                   19
1        The Supreme Court cited fire and traffic safety laws as

2    prime examples.   Gade, 505 U.S. at 107.   Consider a state or

3    local regulation concerning the use of bridges and tunnels

4    by drivers of rigs carrying explosive materials.    OSHA may

5    protect truck drivers, and may specifically protect truck

6    drivers who are moving explosive loads.    But the state or

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.   A regulated truck driver, like any

10   member of the general public, cannot expose fellow citizens

11   to unreasonable danger.   The City’s crane regulations, like

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

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).   Miami’s wind-load

5    standard for tower cranes was held to be preempted by OSHA

6    regulations on the same subject.   Id. at 1323.   Even if it

7    were binding on us, which of course it is not, the case is

8    distinguishable.   The ordinance was not a public safety

9    measure because in Miami “[c]onstruction job sites are

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.   It was deemed significant that Miami “failed

14   to identify a single incident in which a crane accident

15   injured a member of the general public during a hurricane.”

16   Id.   Moreover, although the Eleventh Circuit cited Gade, it

17   did not consider whether Miami’s ordinance could be saved

18   from preemption as a law of general applicability.   Id.

19         In sum, the City’s crane regulations are dual impact

20   regulations that affect both public safety and worker

21   conduct.   Because there is a federal standard in place

22   addressing much the same conduct, the City regulations are

23   preempted unless exempt under Gade as laws of general

                                   21
1    applicability.     We conclude that they are laws of general

2    applicability, not directed at the workplace, that regulate

3    workers as members of the general public, and are therefore

4    saved from preemption.

5

6                                    V

7        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.     Wyeth v.

13   Levine, 555 U.S. 555, 576-77 (2009); see also Geier v. Am.

14   Honda Motor Co., 529 U.S. 861, 883 (2000).     “The weight we

15   accord the agency’s explanation of state law’s impact on the

16   federal scheme depends on its thoroughness, consistency, and

17   persuasiveness.”     Wyeth, 555 U.S. at 577 (citing United

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       OSHA cannot tell us whether the City regulations are

21   preempted or whether the Gade exception applies.     But we are

22   reassured by OSHA’s view--to the extent that it is based on

23   OSHA’s long experience in formulating and administering

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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.     75

7    Fed. Reg. at 48,129.     The Department, now as amicus, takes

8    the same position.     That view is consistent with

9    longstanding OSHA policy.     For example, in 1972, OSHA issued

10   a policy statement addressing local fire regulations:

11       It is the belief of [OSHA] that it was not Congress’
12       intent in passing the Act to preempt these extensive
13       [fire regulation] activities with respect to places of
14       employment covered by the Act. While there is an
15       overlap of jurisdiction in workplaces, [OSHA] feels
16       that the much broader goals of fire marshals’
17       activities preclude their being preempted.
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

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1    when a federal standard is in place.     OSHA, The Effect of

2    Preemption on the State Agencies Without 18(b) Plans, at 2

3    (1981) (cited in Dist. Ct. Amicus Br., Att. 4).

4        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.”     Br. for the U.S. as Amicus Curiae Supporting

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).     “[The Act] does not typically preempt state fire

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.”     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       The City’s crane regulations are saved from preemption

4   as laws of general applicability.   The judgment is affirmed.




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