Steel Institute of New York v. City of New York 1

12-276-cv
Steel Institute of New York v. City of New York
1
UNITED STATES COURT OF APPEALS 2
3
FOR THE SECOND CIRCUIT 4
5
August Term, 2012 6
7
8
(Argued: December 20, 2012 Decided: May 7, 2013) 9
10
Docket No. 12-276 11
12
- - - - - - - - - - - - - - - - - - - -x 13
14
STEEL INSTITUTE OF NEW YORK, 15
16
Plaintiff-Appellant, 17
18
- v.- 19
20
CITY OF NEW YORK, 21
22
Defendant-Appellee. 23
24
- - - - - - - - - - - - - - - - - - - -x 25
26
Before: JACOBS, Chief Judge, CALABRESI and SACK, 27
Circuit Judges. 28
29
The Steel Institute of New York appeals the judgment of 30
the United States District Court for the Southern District 31
of New York (McMahon, J.), which granted the City of New 32
York’s cross-motion for summary judgment and dismissed the 33
complaint, alleging that the City’s regulation of cranes and 34
other hoisting equipment is preempted by federal law. For 35
the following reasons, we affirm. 36

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BRIAN A. WOLF, Smith, Currie & 1
Hancock, LLP, Fort Lauderdale, 2
Florida (J. Daniel Puckett, 3
Smith, Currie & Hancock, LLP, 4
Atlanta, Georgia, on the brief), 5
for Appellant. 6
7
TAHIRIH M. SADRIEH (Edward F. X. 8
Hart and Karen Selvin, on the 9
brief), for Michael A. Cardozo, 10
Corporation Counsel of the City 11
of New York, New York, New York, 12
for Appellee. 13
14
M. Patricia Smith, Solicitor of 15
Labor, U.S. Department of Labor, 16
Washington, D.C. (Joseph M. 17
Woodward, Charles F. James, and 18
Allison G. Kramer, on the 19
brief), for the Secretary of 20
Labor as Amicus Curiae in 21
Support of Appellee. 22
23
24
DENNIS JACOBS, Chief Judge: 25
26
The Steel Institute of New York, advancing the 27
interests of the construction industry, sues the City of New 28
York challenging local statutes and regulations that govern 29
the use of cranes, derricks, and other hoisting equipment in 30
construction and demolition. The Steel Institute argues 31
that they are preempted by the Occupational Safety and 32
Health Act (the “Act”) and federal standards promulgated by 33
the Occupational Safety and Health Administration (“OSHA”). 34
The United States District Court for the Southern District 35
2

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of New York (McMahon, J.) dismissed the suit on summary 1
judgment. We affirm. 2
3
I 4
The Steel Institute sought declaratory and injunctive 5
relief invalidating the City regulations listed in the 6
margin1 on the grounds that they are preempted by the Act 7
and OSHA’s regulations, violate the dormant Commerce Clause, 8
and violate the Steel Institute’s procedural and substantive 9
due process rights. 10
Cross-motions for summary judgment were stayed pending 11
the ongoing amendment of OSHA’s crane regulations, which 12
were published August 9, 2010, and went into effect November 13
8, 2010. The preamble of the amended regulations added a 14
statement on “federalism,” which referenced this lawsuit and 15
disclaimed preemption of “any non-conflicting local or 16
municipal building code designed to protect the public from 17
the hazards of cranes.” Cranes and Derricks in 18
Construction, 75 Fed. Reg. 47,906, 48,129 (Aug. 9, 2010). 19
The cross-motions were re-filed with addenda dealing with 20
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

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the amendments. The Department of Labor filed an amicus 1
curiae brief in the district court in support of the City’s 2
position, as it has here. 3
The district court granted the City’s cross-motion for 4
summary judgment in December 2011, chiefly relying on Gade 5
v. National Solid Wastes Management Ass’n, 505 U.S. 88 6
(1992). See Steel Inst. of N.Y. v. City of N.Y., 832 F. 7
Supp. 2d 310, 320-32 (S.D.N.Y. 2011). Although the court 8
recognized that the City regulations directly and 9
substantially regulate worker safety and health in an area 10
where an OSHA standard exists (which usually would trigger 11
preemption), the court concluded that the City regulations 12
are saved from preemption under Gade because they are laws 13
of “general applicability.” Id. at 323-27. “[C]onsiderable 14
deference” was given to the Secretary of Labor’s 15
interpretation of the preemptive effect of the Act and the 16
OSHA regulations. Id. at 328. The district court also 17
summarily dismissed the Commerce Clause and due process 18
claims. Id. at 332-37. The Steel Institute’s appeal 19
challenges only the ruling on preemption. 20
We review de novo an order granting summary judgment, 21
drawing all factual inferences in favor of the non-moving 22
4

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party. Costello v. City of Burlington, 632 F.3d 41, 45 (2d 1
Cir. 2011). Summary judgment is appropriate when “there is 2
no genuine dispute as to any material fact and the movant is 3
entitled to judgment as a matter of law.” Fed. R. Civ. P. 4
56(a). No material fact is at issue in this case. 5
6
II 7
The federal government regulates worker safety through 8
the Occupational Safety and Health Act, which is 9
administered by OSHA. See 29 U.S.C. §§ 651-78. The Act 10
authorizes promulgation of occupational safety or health 11
standards, id. § 655, that are “reasonably necessary or 12
appropriate to provide safe or healthful employment and 13
places of employment,” id. § 652(8). It is significant to 14
our analysis that the Act does not protect the general 15
public, but applies only to employers and employees in 16
workplaces. See, e.g., id. § 651(b)(1). 17
In the absence of a federal standard, the Act allows 18
states to regulate occupational safety or health issues. 19
Id. § 667(a). If there is a federal standard in place, a 20
state may submit a “State plan” for the Secretary’s approval 21
by which the state “assume[s] responsibility for development 22
5

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and enforcement” of occupational safety and health standards 1
in the area covered by the federal standard. Id. § 667(b)- 2
(c). 3
OSHA has promulgated regulations concerning the use of 4
cranes, derricks, and hoisting equipment: 29 C.F.R. § 1926 5
Subpart CC governs “Cranes and Derricks in Construction,” 6
and Subpart DD governs “Cranes and Derricks Used in 7
Demolition and Underground Construction.” The federal 8
standards apply to “power-operated equipment, when used in 9
construction, that can hoist, lower and horizontally move a 10
suspended load,” including various types of cranes, 11
derricks, trucks, and other hoisting equipment. 29 C.F.R. 12
§ 1926.1400(a). 13
Among other things, the federal rules regulate: 14
• ground conditions that support cranes and similar 15
equipment, id. § 1926.1402; 16
17
• procedures and conditions for design, assembly, 18
disassembly, operation, testing, and maintenance of the 19
machinery, id. §§ 1926.1403, .1417, .1412, .1433; 20
21
• proximity of the equipment to power lines during 22
assembly, operation, and disassembly, id. 23
§§ 1926.1407-.1411; 24
25
• proximity of employees to the machinery and hoisted 26
loads, id. §§ 1926.1424-.1425; 27
28
• signaling between workers, id. §§ 1926.1419-.1422; 29
30
6

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• fall protection for workers, id. § 1926.1423; and 1
2
• worker qualification, certification, and training, 3
id. §§ 1926.1427-.1430. 4
OSHA has authority to enter and inspect regulated worksites, 5
and may enforce the regulations through citations, monetary 6
penalties, criminal penalties, and by seeking injunctive 7
relief. See, e.g., 29 U.S.C. §§ 662, 666. 8
9
III 10
The City’s crane regulations 2 are part of the Building 11
Code and are enforced by the New York City Department of 12
Buildings (“DOB”). See N.Y.C. Admin. Code §§ 28-101.1, 13
-201.3. “The purpose of [the City’s construction code, 14
which includes the Building Code,] is to provide reasonable 15
minimum requirements and standards . . . for the regulation 16
of building construction in the city of New York in the 17
interest of public safety, health, [and] welfare . . . .” 18
Id. § 28-101.2. 19
The statutes at issue in this case are codified in 20
Chapter 33 of the Building Code, which concerns “Safeguards 21
During Construction or Demolition.” At the outset, Chapter 22
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

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33 delineates its scope: “The provisions of this chapter 1
shall govern the conduct of all construction or demolition 2
operations with regard to the safety of the public and 3
property. For regulations relating to the safety of persons 4
employed in construction or demolition operations, OSHA 5
Standards shall apply.” Id. § 28-3301.1. 6
In the district court, the City adduced evidence of 7
local accidents caused by cranes, derricks, and other 8
hoists. J.A. 134-97. For the period 2004 through 2009, the 9
City cited fifteen instances of hoisting equipment failures 10
that caused injury to twenty-seven members of the public and 11
fifteen workers, and the deaths of one member of the public 12
and eight workers. J.A. 136. Relying on a declaration from 13
a DOB engineer, the district court found that “because New 14
York City is the most densely populated major city in the 15
United States, construction worksites necessarily abut, or 16
even spill over into adjoining lots and public streets.” 17
Steel Inst., 832 F. Supp. 2d at 314. “Cranes therefore pose 18
a unique risk to public safety in New York City--at least 19
when they are used away from isolated commercial or 20
industrial yards.” Id. 21
22
8

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Generally, the City requires that hoisting equipment 1
“be installed, operated, and maintained to eliminate hazard 2
to the public or to property.” 3 N.Y.C. Admin. Code 3
§ 28-3316.2. Specific requirements on hoisting equipment 4
include: 5
• following an accident, the owner or person in charge 6
of hoisting equipment must immediately notify the DOB 7
and cease operation of the equipment, id. § 28-3316.3; 8
9
• hoisting equipment must: be designed, constructed, 10
and maintained in accordance with DOB rules; be 11
approved by the DOB; and display appropriate permits, 12
id. §§ 28-3316.4-.5, .8; 13
14
• hoist ropes must be regularly inspected and replaced 15
in accordance with DOB rules, id. § 28-3316.6; and 16
17
• operators of hoisting equipment must be qualified to 18
operate the equipment and must lock it before leaving, 19
id. § 28-3316.7. 20
A separate set of requirements applies more specifically to 21
cranes and derricks. See id. § 28-3319. These include a 22
requirement that “[n]o owner or other person shall authorize 23
or permit the operation of any crane or derrick without a 24
certificate of approval, a certificate of operation and a 25
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

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certificate of on-site inspection.” Id. § 28-3319.3; see 1
also id. § 28-3319.4-.6. The crane and derrick requirements 2
do not apply to “cranes or derricks used in industrial or 3
commercial plants.” Id. § 28-3319.3(6). 4
Even more stringent requirements are imposed on “tower” 5
and “climber” cranes. 4 See id. § 28-3319.8. For these 6
contraptions, a licensed engineer must submit a detailed 7
plan for “erection, jumping, climbing, and dismantling.” 8
Id. § 28-3319.8.1. Before operating such a crane, the 9
general contractor must conduct a “safety coordination” 10
meeting with a licensed engineer, the crane operator, and 11
other designated individuals. Id. § 28-3319.8.2. In 12
addition, the DOB publishes “Reference Standards” (“RS”) 13
governing this equipment. 5
14
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

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To enforce this regulatory scheme, the DOB issues a 1
stop-work order if it finds that any crane, derrick, or 2
hoisting machine is “dangerous or unsafe.” RS 19-2 § 9.1. 3
In sum, the City’s statutes and regulations provide a 4
comprehensive framework to regulate the design, 5
construction, and operation of cranes, derricks, and other 6
hoisting equipment in the City. 7
8
IV 9
The Steel Institute argues that the City’s crane 10
regulations are preempted by the Act and OSHA regulations 11
because they impose occupational health and safety standards 12
in an area where federal standards already exist. The City 13
responds that its regulations are not preempted under the 14
analysis in Gade v. National Solid Wastes Management Ass’n, 15
505 U.S. 88 (1992), and that, even if they are, they are 16
saved by the exception afforded by Gade for laws of general 17
applicability. 18
Preemption can be either express or implied. Id. at 19
98. Implied preemption may take the form of field 20
preemption (if the federal scheme is so pervasive as to 21
displace any state regulation in that field) or conflict 22
11

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preemption (if state regulation makes compliance with 1
federal law impossible or otherwise frustrates the 2
objectives of Congress). Id.; see also N.Y. SMSA Ltd. 3
P’ship v. Town of Clarkstown, 612 F.3d 97, 104 (2d Cir. 4
2010) (per curiam). 5
There is a strong presumption against preemption when 6
states and localities “exercise[] their police powers to 7
protect the health and safety of their citizens.” 8
Medtronic, Inc. v. Lohr, 518 U.S. 470, 475, 484-85 (1996). 9
“Because of the role of States as separate sovereigns in our 10
federal system, we have long presumed that state laws . . . 11
that are within the scope of the States’ historic police 12
powers . . . are not to be pre-empted by a federal statute 13
unless it is the clear and manifest purpose of Congress to 14
do so.” Geier v. Am. Honda Motor Co., 529 U.S. 861, 894 15
(2000) (Stevens, J., dissenting); see also N.Y. SMSA Ltd. 16
P’ship, 612 F.3d at 104. “Protection of the safety of 17
persons is one of the traditional uses of the police power,” 18
which is “one of the least limitable of governmental 19
powers.” Queenside Hills Realty Co. v. Saxl, 328 U.S. 80, 20
82-83 (1946). 21
22
12

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Here, New York City has exercised its fundamental 1
police power to protect public safety, but has done so by 2
regulating an area where federal occupational standards 3
exist. Gade controls. In that case, Illinois enacted 4
statutes regulating the licensing and training of employees 5
who work with hazardous waste. Gade, 505 U.S. at 91. The 6
issue was whether the Illinois regime was preempted by OSHA 7
regulations on “Hazardous Waste Operations and Emergency 8
Response,” which included training requirements for 9
hazardous waste workers. Id. at 92. 10
The Court characterized the Illinois laws as “dual 11
impact” statutes because they “protect[ed] both workers and 12
the general public.” Id. at 91. A plurality of the Court 13
held that the Act displaced conflicting state rules through 14
implied conflict preemption (there being no express 15
preemption in the Act). 6 Id. at 98-99 (O’Connor, J., 16
plurality op.). Viewing the Act as a whole, the Court 17
concluded that it “precludes any state regulation of an 18
occupational safety or health issue with respect to which a 19
federal standard has been established, unless a state plan 20
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

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has been submitted and approved pursuant to § 18(b).” Id. 1
at 102. 2
The Gade Court rejected the state’s argument that dual 3
impact statutes are not preempted. Id. at 104-05. 4
“Although ‘part of the pre-empted field is defined by 5
reference to the purpose of the state law in 6
question, . . . another part of the field is defined by the 7
state law’s actual effect.’” Id. at 105 (quoting English v. 8
Gen. Elec. Co., 496 U.S. 72, 84 (1990)) (emphases added). 9
Accordingly, a state law that “constitutes, in a direct, 10
clear and substantial way, regulation of worker health and 11
safety” is preempted under the Act. Id. at 107 (internal 12
quotation marks omitted). 13
Critically, the Court recognized an exception for state 14
and local regulations that are of “general applicability.” 15
Id. But the Court held that because the Illinois statutes 16
were primarily “directed at workplace safety,” they were not 17
laws of general applicability and therefore succumbed to 18
preemption. Id. at 107-08. 19
The New York City crane regulations are unquestionably 20
“dual impact” regulations. For the most part, they are 21
intended to protect public safety and welfare. See N.Y.C. 22
14

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Admin. Code § 28-101.2. There is considerable evidence of 1
accident risks posed by cranes, derricks, and other hoisting 2
equipment. See, e.g., Steel Inst., 832 F. Supp. 2d at 314; 3
J.A. 134-97. Many of the provisions are specifically 4
designed to protect the safety of the general public in the 5
vicinity of cranes and other hoisting equipment. See, e.g., 6
RS 19-2 § 23.3.5 (prohibiting loads from being carried over 7
occupied buildings unless top two floors are evacuated). 8
The risk to the public in New York City is substantial and 9
palpable. 7
10
That is the purpose of the City regulations; we must 11
also gauge their effect. Gade, 505 U.S. at 105. In their 12
effect, the regulations protect worker health and safety in 13
a “direct, clear and substantial” way. Id. at 107. For 14
example, Section 3316.7 of the Building Code provides that 15
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

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only designated, specially qualified workers may operate 1
hoisting equipment. See N.Y.C. Admin. Code § 28-3316.7. 2
Similarly, the regulations require that a detailed plan be 3
submitted for the use of tower or climber cranes, and a 4
safety meeting must be held before a crane is “jumped.” Id. 5
§ 28-3319.8. While these restrictions protect the general 6
safety of those near and around construction sites, the 7
direct and immediate effect is to protect workers at the 8
site. 9
The federal standards here--on “Cranes and Derricks in 10
Construction” and “Cranes and Derricks Used in Demolition 11
and Underground Construction”--regulate the same things, 12
i.e., the use of “power-operated equipment,” including 13
cranes, derricks, and other hoisting equipment, “when used 14
in construction.” 29 C.F.R. § 1926.1400(a). The City 15
regulations may employ different means, but they nonetheless 16
constitute “regulation of an occupational safety or health 17
issue with respect to which a federal standard has been 18
established.” Gade, 505 U.S. at 102. Under Gade, the 19
City’s crane regulations are preempted unless they are saved 20
from preemption as laws of general applicability. 21
22
16

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Gade exempts from preemption “state laws of general 1
applicability (such as laws regarding traffic safety or fire 2
safety) that do not conflict with OSHA standards and that 3
regulate the conduct of workers and nonworkers alike.” 505 4
U.S. at 107. Even a law that directly and substantially 5
protects workers “cannot fairly be characterized as [an] 6
‘occupational’ standard[]” if it “regulate[s] workers simply 7
as members of the general public.” Id. But a law “directed 8
at workplace safety” will not be saved from preemption. Id. 9
The Gade exception saves the City regulations from 10
preemption because they are of general applicability. They 11
do not conflict with OSHA standards; at most, the City’s 12
regulations provide additional or supplemental requirements 13
on some areas regulated by OSHA. By their terms they apply 14
to the conduct of workers and nonworkers alike. 8
15
Most importantly, the City regulations are not directed 16
at safety in the workplace. In Gade, the preempted state 17
laws imposed licensing requirements on “hazardous waste 18
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

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equipment operators and laborers working at certain 1
facilities.” 505 U.S. at 93 (emphasis added). That law was 2
not saved from preemption as a law of general applicability 3
because it was “directed at workplace safety.” Id. at 107 4
(emphasis added). Gade’s holding reflects the plain 5
language of the Occupational Safety and Health Act, which 6
focuses only on “employment performed in a workplace.” 29 7
U.S.C. § 653(a) (emphasis added). Congress intended that 8
the Act help “reduce the number of occupational safety and 9
health hazards at their places of employment.” Id. 10
§ 651(b)(1) (emphasis added); see also id. § 654 (requiring 11
employers to furnish employees with “a place of employment” 12
free from hazards). 13
New York’s crane regulations, by contrast, apply all 14
over the City, not just in workplaces or construction sites. 15
As the district court found, New York City is always 16
undergoing construction, and construction risks are by no 17
means confined to a single building or lot. 9 “Cranes, which 18
can be as tall as 1800 feet, and move loads as heavy as 825 19
tons, do not confine themselves to the property on which 20
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

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they are being used when they break, or worse, collapse; 1
they inevitably damage surrounding buildings and risk 2
injuring people in their homes and on the street.” Steel 3
Inst., 832 F. Supp. 2d at 314 (internal citation omitted). 4
A salient feature of the City’s regime is that crane 5
activity confined to a workplace is expressly excluded from 6
the scope of the City regulations: the regulations do not 7
apply “to cranes or derricks used in industrial or 8
commercial plants or yards” (unless used for construction of 9
the facility itself). N.Y.C. Admin. Code § 3319.3(6) . The 10
City regulations therefore are directed at public safety 11
even though they achieve this goal, in part and 12
incidentally, by regulating the conduct of workers. 13
Police powers that protect everyone in the City will 14
naturally regulate some workers. Many of the regulations 15
that protect New Yorkers on a daily basis may bear upon the 16
conduct of workers, but nonetheless can be considered laws 17
of general applicability. They are specific applications of 18
a general prohibition on conduct that endangers the 19
populace, such as taxi regulations that protect drivers 20
while protecting passengers and pedestrians. The point is 21
best appreciated by imagining the crowded city without such 22
regulations. 23
19

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The Supreme Court cited fire and traffic safety laws as 1
prime examples. Gade, 505 U.S. at 107. Consider a state or 2
local regulation concerning the use of bridges and tunnels 3
by drivers of rigs carrying explosive materials. OSHA may 4
protect truck drivers, and may specifically protect truck 5
drivers who are moving explosive loads. But the state or 6
local regulation is not directed at a workplace: its main 7
concern is the safety of the population, and the security of 8
the infrastructure. A regulated truck driver, like any 9
member of the general public, cannot expose fellow citizens 10
to unreasonable danger. The City’s crane regulations, like 11
fire codes and traffic laws, are an exercise of the police 12
power to protect the safety of the public in a crowded 13
metropolis. 10
14
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

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The Steel Institute relies heavily on the Eleventh 1
Circuit’s decision in Associated Builders & Contractors 2
Florida East Coast Chapter v. Miami-Dade County, 594 F.3d 3
1321 (11th Cir. 2010) (per curiam). Miami’s wind-load 4
standard for tower cranes was held to be preempted by OSHA 5
regulations on the same subject. Id. at 1323. Even if it 6
were binding on us, which of course it is not, the case is 7
distinguishable. The ordinance was not a public safety 8
measure because in Miami “[c]onstruction job sites are 9
closed to the public and it is undisputed that the 10
Ordinance’s wind load standards regulate how workers use and 11
erect tower cranes during the course of their employment.” 12
Id. at 1324. It was deemed significant that Miami “failed 13
to identify a single incident in which a crane accident 14
injured a member of the general public during a hurricane.” 15
Id. Moreover, although the Eleventh Circuit cited Gade, it 16
did not consider whether Miami’s ordinance could be saved 17
from preemption as a law of general applicability. Id. 18
In sum, the City’s crane regulations are dual impact 19
regulations that affect both public safety and worker 20
conduct. Because there is a federal standard in place 21
addressing much the same conduct, the City regulations are 22
preempted unless exempt under Gade as laws of general 23
21

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applicability. We conclude that they are laws of general 1
applicability, not directed at the workplace, that regulate 2
workers as members of the general public, and are therefore 3
saved from preemption. 4
5
V 6
The parties dispute whether deference is owed to the 7
Department of Labor’s views on whether the City’s crane 8
regulations are preempted. We do not defer to an agency’s 9
legal conclusion regarding preemption, but we give “some 10
weight” to an agency’s explanation of how state or local 11
laws may affect the federal regulatory scheme. Wyeth v. 12
Levine, 555 U.S. 555, 576-77 (2009); see also Geier v. Am. 13
Honda Motor Co., 529 U.S. 861, 883 (2000). “The weight we 14
accord the agency’s explanation of state law’s impact on the 15
federal scheme depends on its thoroughness, consistency, and 16
persuasiveness.” Wyeth, 555 U.S. at 577 (citing United 17
States v. Mead Corp., 533 U.S. 218, 234-35 (2001), and 18
Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)). 19
OSHA cannot tell us whether the City regulations are 20
preempted or whether the Gade exception applies. But we are 21
reassured by OSHA’s view--to the extent that it is based on 22
OSHA’s long experience in formulating and administering 23
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nationwide workplace standards--that the City regulations 1
(and other municipal codes like it) do not interfere with 2
OSHA’s regulatory scheme. 3
The preamble to the 2010 amendments of OSHA’s crane 4
regulations specifically references this case and states 5
that the City’s crane regulations are not preempted. 75 6
Fed. Reg. at 48,129. The Department, now as amicus, takes 7
the same position. That view is consistent with 8
longstanding OSHA policy. For example, in 1972, OSHA issued 9
a policy statement addressing local fire regulations: 10
It is the belief of [OSHA] that it was not Congress’ 11
intent in passing the Act to preempt these extensive 12
[fire regulation] activities with respect to places of 13
employment covered by the Act. While there is an 14
overlap of jurisdiction in workplaces, [OSHA] feels 15
that the much broader goals of fire marshals’ 16
activities preclude their being preempted. 17
18
OSHA Policy Statement Concerning State & Local Fire Marshall 19
Activities, at 1 (1972) (cited in Mem. of Law of the 20
Secretary of Labor as Amicus Curiae in Support of Defendant 21
(“Dist. Ct. Amicus Br.”), Att. 3, Steel Inst. of N.Y. v. 22
City of N.Y., No. 09-cv-6539 (S.D.N.Y. Jan. 6, 2011)). 23
Similarly, a 1981 OSHA directive indicated that “[s]tate 24
enforcement of standards which on their face are 25
predominantly for the purpose of protecting a class of 26
persons larger than employees” would not be preempted, even 27
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when a federal standard is in place. OSHA, The Effect of 1
Preemption on the State Agencies Without 18(b) Plans, at 2 2
(1981) (cited in Dist. Ct. Amicus Br., Att. 4). 3
In 1992, the United States (on behalf of the Department 4
of Labor) submitted an amicus brief in Gade, advocating the 5
view--partly adopted by the Court--that “[a] state law of 6
general applicability that only incidentally affects 7
workers, not as a class, but as members of the general 8
public, cannot fairly be described as an ‘occupational’ 9
standard.” Br. for the U.S. as Amicus Curiae Supporting 10
Resp’t, at 24 n.14, Gade v. Nat’l Solid Wastes Mgmt. Ass’n, 11
No. 90-1676 (Mar. 2, 1992) (cited in Dist. Ct. Amicus Br., 12
Att. 5). “[The Act] does not typically preempt state fire 13
protection, boiler inspection, or building and electrical 14
code requirements, even though there are OSHA standards on 15
these subjects, because the state standards do not aim to 16
protect workers as a class, and do not have that primary 17
effect.” Id. 18
Although no deference is compelled, we grant “some 19
weight” to OSHA’s view in reaching our conclusion that local 20
regulatory schemes such as the City’s crane regulations have 21
the aim and primary effect of regulating conduct to secure 22
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the safety of the general public, rather than the safety of 1
workers in the workplace. 2
The City’s crane regulations are saved from preemption 3
as laws of general applicability. T he judgment is affirmed. 4
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