Case Information
*1 Bеfore: JACOBS, Chief Judge, CALABRESI and SACK, Circuit Judges. The Steel Institute of New York appeals the judgment of the United States District Court for the Southern District of New York (McMahon, J.), which granted the City of New York’s cross-motion for summary judgment and dismissed the complaint, alleging that the City’s regulation of cranes and other hoisting equipment is preempted by federal law. For the following reasons, we affirm.
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, Corporаtion 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 interests of the construction industry, sues the City of New York challenging local statutes and regulations that govern the use of cranes, derricks, and other hoisting equipment in construction and demolition. The Steel Institute argues that they are preempted by the Occupational Safety and Health Act (the “Act”) and federal standards promulgated by the Occupational Safety and Health Administration (“OSHA”). The United States District Court for the Southern District *3 of New York (McMahon, J.) dismissed the suit on summary judgment. We affirm.
I
The Steel Institute sought declaratory and injunctive relief invalidating the City regulations listed in the margin [1] on the grounds that they are preempted by the Act and OSHA’s regulations, violate the dormant Commerce Clause, and violate the Steel Institute’s procedural and substantive due process rights.
Cross-motions for summary judgment were stayed pending the ongoing amendment of OSHA’s crane regulations, which were published August 9, 2010, and went into effect November 8, 2010. The preamble of the amended regulations added a statement on “federalism,” which referenced this lawsuit and disclaimed preemption of “any non-conflicting local or municipal building code designed to protect the public from the hazards of cranes.” Cranes and Derricks in Construction, 75 Fed. Reg. 47,906, 48,129 (Aug. 9, 2010). The cross-motions were re-filed with addenda dealing with *4 the amendments. The Department of Labor filed an amicus curiae brief in the district court in support of the City’s position, as it has here.
The district court granted the City’s cross-motion for
summary judgment in December 2011, chiefly relying on Gade
v. National Solid Wastes Management Ass’n,
We review de novo an order granting summary judgment,
drawing all factual inferences in favor of the non-moving
*5
party. Costello v. City of Burlington,
II
The federal government regulates worker safety through the Occupational Safety and Health Act, which is administered by OSHA. See 29 U.S.C. §§ 651-78. The Act authorizes promulgation of occupational safety or health standards, id. § 655, that are “reasonably necessary or appropriate to provide safe or healthful employment and places of employment,” id. § 652(8). It is significant to our analysis that the Act does not protect the general public, but applies only to employers and employees in workplaces. See, e.g., id. § 651(b)(1).
In the absence of a federal standard, the Act allows states to regulate occupational safety or health issues. Id. § 667(a). If there is a federal standard in place, a state may submit a “State plan” for the Secretary’s approval by which the state “assume[s] responsibility for development *6 and enforcement” of occupational safety and health standards in the area covered by the federal standard. Id. § 667(b)- (c).
OSHA has promulgated regulations concerning the use of сranes, derricks, and hoisting equipment: 29 C.F.R. § 1926 Subpart CC governs “Cranes and Derricks in Construction,” and Subpart DD governs “Cranes and Derricks Used in Demolition and Underground Construction.” The federal standards apply to “power-operated equipment, when used in construction, that can hoist, lower and horizontally move a suspended load,” including various types of cranes, derricks, trucks, and other hoisting equipment. 29 C.F.R. § 1926.1400(a).
Among other things, the federal rules regulate: • 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; *7 • fall protection for workers, id. § 1926.1423; and • worker qualification, certification, and training, id. §§ 1926.1427-.1430.
OSHA has authority to enter and inspect regulated worksites, and may enforce the regulations through citations, monetary penalties, criminal penalties, and by seeking injunctive relief. See, e.g., 29 U.S.C. §§ 662, 666.
III
The City’s crane regulations [2] are part of the Building Code and are enforced by the New Yоrk City Department of Buildings (“DOB”). See N.Y.C. Admin. Code §§ 28-101.1, -201.3. “The purpose of [the City’s construction code, which includes the Building Code,] is to provide reasonable minimum requirements and standards . . . for the regulation of building construction in the city of New York in the interest of public safety, health, [and] welfare . . . .” Id. § 28-101.2.
The statutes at issue in this case are codified in Chapter 33 of the Building Code, which concerns “Safeguards During Construction or Demolition.” At the outset, Chapter *8 33 delineates its scope: “The provisions of this chapter shall govern the conduct of all construction or demolition operations with regard to the safety of the public and property. For regulations relating to the safety of persons employed in construction or demolition operations, OSHA Standards shall apply.” Id. § 28-3301.1.
In the district court, the City adduced evidence of
local accidents caused by cranes, derricks, and other
hoists. J.A. 134-97. For the period 2004 through 2009, the
City cited fifteen instances of hoisting equipment failures
that caused injury to twenty-seven members of the public and
fifteen workers, and the deaths of one member of the public
and eight workers. J.A. 136. Relying on a dеclaration from
a DOB engineer, the district court found that “because New
York City is the most densely populated major city in the
United States, construction worksites necessarily abut, or
even spill over into adjoining lots and public streets.”
Steel Inst.,
Generally, the City requires that hoisting equipment “be installed, operated, and maintained to eliminate hazard to the public or to property.” [3] N.Y.C. Admin. Code § 28-3316.2. Specific requirements on hoisting equipment include:
• 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.
A separate set of requirements applies more specifically to cranes and derricks. See id. § 28-3319. These include a requirement that “[n]o owner or other person shall authorize or permit the operation of any crane or derrick without a certificate of approval, a certificate of operation and a *10 certificate of on-site inspection.” Id. § 28-3319.3; see also id. § 28-3319.4-.6. The crane and derrick requirements do not apply to “cranes or derricks used in industrial or commercial plants.” Id. § 28-3319.3(6).
Even more stringent requirements are imposed on “tower” and “climber” cranes. [4] See id. § 28-3319.8. For these contraptions, a licensed engineer must submit a detailed plan for “erection, jumping, climbing, and dismantling.” Id. § 28-3319.8.1. Before operating such a crane, the general contractor must conduct a “safety coordination” meeting with a licensed engineer, the crane operator, and other designated individuals. Id. § 28-3319.8.2. In addition, the DOB publishes “Reference Standards” (“RS”) governing this equipment. [5]
*11 To enforce this regulatory scheme, the DOB issues a stop-work order if it finds that any cranе, derrick, or hoisting machine is “dangerous or unsafe.” RS 19-2 § 9.1. In sum, the City’s statutes and regulations provide a comprehensive framework to regulate the design, construction, and operation of cranes, derricks, and other hoisting equipment in the City.
IV
The Steel Institute argues that the City’s crane
regulations are preempted by the Act and OSHA regulations
because they impose occupational health and safety standards
in an area where federal standards already exist. The City
responds that its regulations are not preempted under the
analysis in Gade v. National Solid Wastes Management Ass’n,
Preemption can be either express or implied. Id. at
98. Implied preemption may take the form of field
preemption (if the federal scheme is so pervasive as to
displace any state regulation in that field) or conflict
*12
preemption (if state regulation makes compliance with
federal law impossible or otherwise frustrates the
objectives of Congress). Id.; sеe also N.Y. SMSA Ltd.
P’ship v. Town of Clarkstown,
There is a strong presumption against preemption when
states and localities “exercise[] their police powers to
protect the health and safety of their citizens.”
Medtronic, Inc. v. Lohr,
Here, New York City has exercised its fundamental
police power to protect public safety, but has done so by
regulating an area where federal occupational standards
exist. Gade controls. In that case, Illinois enacted
statutes regulating the licensing and training of employees
who work with hazardous waste. Gade,
The Court characterized the Illinois laws as “dual impact” statutes because they “protect[ed] both workers and the general public.” Id. at 91. A plurality of the Court held that the Act displaced conflicting state rules through implied conflict preemption (there being no express preemption in thе Act). [6] Id. at 98-99 (O’Connor, J., plurality op.). Viewing the Act as a whole, the Court concluded that it “precludes any state regulation of an occupational safety or health issue with respect to which a federal standard has been established, unless a state plan *14 has been submitted and approved pursuant to § 18(b).” Id. at 102.
The Gade Court rejected the state’s argument that dual impact statutes are not preempted. Id. at 104-05.
“Although ‘part of the pre-empted field is defined by
reference to the
purpose
of the state law in
question, . . . another part of the field is defined by the
state law’s
actual effect
.’” Id. at 105 (quoting English v.
Gen. Elec. Co.,
Critically, the Court recognized an exception for state and local regulations that are of “general applicability.” Id. But the Court held that because the Illinois statutes were primarily “directed at workplace safety,” they were not laws of general applicability and therefore succumbed to prеemption. Id. at 107-08.
The New York City crane regulations are unquestionably
“dual impact” regulations. For the most part, they are
intended to protect public safety and welfare. See N.Y.C.
*15
Admin. Code § 28-101.2. There is considerable evidence of
accident risks posed by cranes, derricks, and other hoisting
equipment. See, e.g., Steel Inst.,
That is the
purpose
of the City regulations; we must
also gauge their
effect
. Gade,
The federal standards here--on “Cranes and Derricks in
Construction” and “Cranes and Derricks Used in Demolition
and Underground Construction”--regulate the same things,
i.e., the use of “power-operated equipment,” including
cranes, derricks, and other hoisting equipment, “when used
in construction.” 29 C.F.R. § 1926.1400(a). The City
regulations may employ different means, but they nonetheless
constitute “regulation of an occupational safety or health
issue with respect to which a federal standard has been
established.” Gade,
Gade exempts from preemption “state laws of general applicability (such as laws regarding traffic safety or fire safety) that do not conflict with OSHA standards and that regulate the conduct of workers and nonworkers alike.” 505 U.S. at 107. Even a law that directly and substantially protects workers “cannot fairly be characterized as [an] ‘occupational’ standard[]” if it “regulate[s] workers simply as members of the general public.” Id. But a law “directed at workplace safety” will not be saved from preemption. Id.
The Gade exception saves the City regulations from preemption because they are of general applicability. They do not conflict with OSHA standards; at most, the City’s regulations provide additional or supplemental requirements on some areas regulated by OSHA. By their terms they apply to the conduct of workers and nоnworkers alike. [8]
Most importantly, the City regulations are not directed
at safety in the workplace. In Gade, the preempted state
laws imposed licensing requirements on “hazardous waste
*18
equipment operators and laborers
working at certain
facilities
.”
§ 651(b)(1) (emphasis added); see also id. § 654 (requiring employers to furnish employees with “a place of employment” free from hazards).
New York’s crane regulations, by contrast, apply all
over the City, not just in workplaces or construction sites.
As the district court found, New York City is always
undergoing construction, and construction risks are by no
means confined to a single building or lot.
[9]
“Cranes, which
can be as tall as 1800 feet, and move loads as heavy as 825
tons, do not confine themselves to the property on which
*19
they are being used when they break, or worse, collapse;
they inevitably damage surrounding buildings and risk
injuring people in their homes and on the street.” Steel
Inst.,
Police powers that protect everyone in the City will naturally regulate some workers. Many of the regulations that protect New Yorkers on a daily basis may bear upon the conduct of workers, but nonetheless can be considered laws of general applicability. They are specific applications of a general prohibition on conduct that endangers the populace, such as taxi regulations that protect drivers while protecting passengers and pedestrians. The point is best appreciated by imagining the crowded city without such regulations.
The Supreme Court cited fire and traffic safety laws as
prime examples. Gade,
*21 The Steel Institute relies heavily on the Eleventh Circuit’s decision in Associated Builders & Contractors Florida East Coast Chapter v. Miami-Dade County, 594 F.3d 1321 (11th Cir. 2010) (per curiam). Miami’s wind-load standard for tower cranes was held to be preempted by OSHA regulations on the same subject. Id. at 1323. Even if it were binding on us, which of course it is not, the case is distinguishable. The ordinance was not a public safety measure because in Miami “[c]onstruction job sites are closed to the public and it is undisputed that the Ordinance’s wind load standards regulate how workers use and erect tower cranes during the course of their employment.” Id. at 1324. It was deemed significant that Miami “failed to identify a single incident in which a crane accident injured a member of the general public during a hurricanе.” Id. Moreover, although the Eleventh Circuit cited Gade, it did not consider whether Miami’s ordinance could be saved from preemption as a law of general applicability. Id.
In sum, the City’s crane regulations are dual impact regulations that affect both public safety and worker conduct. Because there is a federal standard in place addressing much the same conduct, the City regulations are preempted unless exempt under Gade as laws of general *22 applicability. We conclude that they are laws of general aрplicability, not directed at the workplace, that regulate workers as members of the general public, and are therefore saved from preemption.
V
The parties dispute whether deference is owed to the
Department of Labor’s views on whether the City’s crane
regulations are preempted. We do not defer to an agency’s
legal conclusion regarding preemption, but we give “some
weight” to an agency’s explanation of how state or local
laws may affect the federal regulatory scheme. Wyеth v.
Levine,
OSHA cannot tell us whether the City regulations are preempted or whether the Gade exception applies. But we are reassured by OSHA’s view--to the extent that it is based on OSHA’s long experience in formulating and administering *23 nationwide workplace standards--that the City regulations (and other municipal codes like it) do not interfere with OSHA’s regulatory scheme.
The prеamble to the 2010 amendments of OSHA’s crane regulations specifically references this case and states that the City’s crane regulations are not preempted. 75 Fed. Reg. at 48,129. The Department, now as amicus, takes the same position. That view is consistent with longstanding OSHA policy. For example, in 1972, OSHA issued a policy statement addressing local fire regulations:
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.
OSHA Policy Statement Concerning State & Local Fire Marshall Activities, at 1 (1972) (cited in Mem. of Law of the Secretary of Labor as Amicus Curiae in Support of Defendant (“Dist. Ct. Amicus Br.”), Att. 3, Steel Inst. of N.Y. v. City of N.Y., No. 09-cv-6539 (S.D.N.Y. Jan. 6, 2011)). Similarly, a 1981 OSHA directive indicated that “[s]tate enforcement of standards which on their face are predominantly for the purpose of protecting a class of persons larger than employees” would not be preеmpted, even *24 when a federal standard is in place. OSHA, The Effect of Preemption on the State Agencies Without 18(b) Plans, at 2 (1981) (cited in Dist. Ct. Amicus Br., Att. 4).
In 1992, the United States (on behalf of the Department of Labor) submitted an amicus brief in Gade, advocating the view--partly adopted by the Court--that “[a] state law of general applicability that only incidentally affects workers, not as a class, but as members of the general public, cannot fairly be described as an ‘occupational’ standard.” Br. for the U.S. as Amicus Curiae Supporting Resp’t, at 24 n.14, Gade v. Nat’l Solid Wastes Mgmt. Ass’n, No. 90-1676 (Mar. 2, 1992) (cited in Dist. Ct. Amicus Br., Att. 5). “[The Act] does not typically preempt state fire protection, boiler inspection, or building and electrical code requirements, even though there are OSHA standards on these subjects, because the state standards do not aim to protect workers as a class, and do not have that primary effect.” Id.
Although no deference is compelled, we grant “some weight” to OSHA’s view in reaching our conclusion that local regulatory schemes such as the City’s crane regulations have the aim and primary effect оf regulating conduct to secure *25 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. T he judgment is affirmed.
Notes
[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.
[2] Although the City regulations are referenced in this opinion as “crane regulations,” they apply to other equipment as well, including derricks and hoists.
[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.
[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).
[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).
[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. T IMES , 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. D AILY N EWS , 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, W ALL S T . J., Nov. 4, 2012.
[8] For examрle, 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.
[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.
[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.