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Steel Institute of New York v. City of New York


May 7, 2013


The opinion of the court was delivered by: Dennis Jacobs, Chief Judge:


Steel Institute of New York v. City of New York

Argued: December 20, 2012

Before: JACOBS, Chief Judge, CALABRESI and SACK, Circuit Judges.

The Steel Institute of New York appeals the judgment of 31 the United States District Court for the Southern District 32 of New York (McMahon, J.), which granted the City of New 33 York's cross-motion for summary judgment and dismissed the 34 complaint, alleging that the City's regulation of cranes and 35 other hoisting equipment is preempted by federal law. For 36 the following reasons, we affirm.

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


The Steel Institute sought declaratory and injunctive 6 relief invalidating the City regulations listed in the 7 margin*fn1 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 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 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.


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)- (c).

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;

18 * procedures and conditions for design, assembly, 19 disassembly, operation, testing, and maintenance of the 20 machinery, id. §§ 1926.1403, .1417, .1412, .1433;

22 * proximity of the equipment to power lines during 23 assembly, operation, and disassembly, id. 24 §§ 1926.1407-.1411;

26 * proximity of employees to the machinery and hoisted 27 loads, id. §§ 1926.1424-.1425;

29 * signaling between workers, id. §§ 1926.1419-.1422;

1 * fall protection for workers, id. § 1926.1423; and

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.


The City's crane regulations*fn2 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 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.

1 Generally, the City requires that hoisting equipment 2 "be installed, operated, and maintained to eliminate hazard 3 to the public or to property."*fn3 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;

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;

15 * hoist ropes must be regularly inspected and replaced 16 in accordance with DOB rules, id. § 28-3316.6; and

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 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.*fn4 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.*fn5

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.

9 IV

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 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).

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).*fn6 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 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. 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.*fn7 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 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.

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.*fn8 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 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.*fn9 "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 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.

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.*fn10

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 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.


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 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.

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 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 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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