“SECRETARY OF LABOR,Complainant,v.THE TOWNE CONSTRUCTION COMPANY,Respondent.OSHRC Docket No. 83-1262_DECISION_Before: BUCKLEY, Chairman; WALL, Commissioner.BY THE COMMISSION:This case is before the Occupational Safety and Health Review Commissionunder 29 U.S.C. ? 661(j), section 12(j) of the Occupational Safety andHealth Act of 1970, 29 U.S.C. ?? 651-678 (\”the Act\”). The Commission isan adjudicatory agency, independent of the Department of Labor and theOccupational Safety and Health Administration (\”OSHA\”). It wasestablished to resolve disputes arising out of enforcement actionsbrought by the Secretary of Labor under the Act and has no regulatoryfunctions. _See_ section 10(c) of the Act, 29 U.S.C. ? 659(c).Towne Construction Company is a Canton, Ohio, general constructioncontractor. In 1983 Towne held a subcontract to construct a waterreservoir at Timken Steel’s new Faircrest Steel plant in Canton. OnSeptember 27, 1983, it was in the process of tying reinforcing steel(\”rebars\”) into mats, which would be installed in the walls of thereservoir before concrete was poured. A 25-tonGrove truck crane was used to lift the mat from its horizontal positionto a nearly vertical position, where it would be tied off and then putinto the wall by a smaller crane. When one end of the mat was nearlyvertical to the floor, the boom of the crane collapsed, causing thesteel mat to strike and kill one of Towne’s employees who was on thefloor assisting in the positioning of the mat.The Secretary of Labor issued citations to Towne alleging violations oftwo crane safety standards. Administrative Law Judge James D. Burroughsaffirmed both citations. We affirm one citation and vacate the other.Citation 1: 29 C.F.R. ? 1926.550(a)(1), Exceeding Crane Manufacturer’sLoad LimitationsIn citation 1 the Secretary alleged that, contrary to 29 C.F.R. ?1926.550(a)(1), the angle of the crane’s boom was less than thatrequired by the crane manufacturer’s load limitations chart to lift aload of the weight involved here. The standard provides:? 1926.550 Cranes and derricks.(a) _General requirements_. (1) The employer shall comply with themanufacturer’s specifications and limitations applicable to theoperation of any and all cranes and derricks. . . ._Delegation Issue_Towne argues that the first sentence of section 1926.550(a)(1)constitutes an invalid delegation to crane manufacturers by theSecretary of the legislative authority that Congress granted exclusivelyto the Secretary.[[1]] Towne points out that the first sentence of thestandard requires an employer to comply with specifications andlimitations set by crane manufacturers, not by the Secretary. JudgeBurroughs concluded that Towne had not proven that the standardcontained an invalid delegation of legislative authority. We agree,though for somewhat different reasons.Both Towne and the Secretary cite a number of cases to support theirpositions. Towne cites _Gibson v. Berryhill_, 411 U.S. 564, 578-79(1973); _Carter v. Carter Coal Co_., 298 U.S. 238, 310-12 (1936);_Eubank v. City of Richmond_, 226 U.S. 137, 143-44 (1912). There, theSupreme Court found unconstitutional delegations in statutes authorizingpersons to develop regulations that their actual or potentialcompetitors would be required to comply with. Here, however, the cranemanufacturer who developed the load chart was not an economic competitorof the crane user. The cases cited by the Secretary can also bedistinguished; for example, many do not involve delegations to privatepersons or businesses.[[2]]Like Judge Burroughs, we find that other crane standards adopted by theSecretary, particularly 29 C.F.R. ?? 1910.180(c)(1)(i)-(iv) and1926.550(b)(2), cast more illumination on the delegation question. Given these other standards, as explained more fully below, we concludethat the first sentence of section 1925.550(a)(1) can be validly appliedin many cases. We also conclude that Towne has failed to carry itsburden of proving that section 1926.550(a)(1) is invalid as applied here.On its face, section 1926.550(a)(1) appears to delegate authority tocrane manufacturers. The standard unambiguously states that employers\”shall comply with the manufacturer’s specifications and limitationsapplicable to the operation of. . .all cranes. . . .\” The Secretaryargues, however, that there is no true delegation in this case becauseOSHA regulations very closely prescribe the methods crane manufacturersmust use in determining crane load limits. This argument is generallysound. Legally binding regulations can so closely circumscribe thediscretion of a crane manufacturer in calculating load limits that itwould be the government rather than the manufacturer that would beeffectively prescribing the duty of a crane user. This system ofregulation need not be perfect.[[3]] Furthermore, some reliance onmanufacturers to calculate specifications for their products isunavoidable. Simply stated, the federal government must rely on privateorganizations to establish such specialized criteria as load chartsbecause it would be neither practical nor efficient for the governmentto set or approve load-limit capacity tables for every model of crane inuse. This practical consideration deserves some weight. _See_ _UnitedStates v. Dettra Flag Co_., 86 F. Supp. 84, 87 (E.D. Pa. 1949).We therefore note that the OSHA standards at 29 C.F.R. ??1910.180(c)(1)(i)-(iv)[[4]] prescribe with specificity the proceduresthat crane manufacturers must follow in calculating load limits.[[5]] In particular, section 1910.180(c)(1)(iii) requires the manufacturer tocomply with SAE J765, _Crane Load Stability Test Code_ (1967)[hereinafter cited as \”SAE\”], a \”Recommended Practice\” published by theSociety of Automotive Engineers, Inc., reproduced as Appendix F of PCSAStandard No. 2, _Mobile_ _Hydraulic Crane Standards_ (1968) [hereinaftercited as \”PCSA\”], published by the Power Crane and Shovel Association. That code is _very_ detailed in describing how a crane load’s limits areto be calculated.[[6]] The manufacturer of a crane is therefore notleft to his own devices in calculating load limits, but is answerable tothe Occupational Safety and Health Administration through section1910.180(c)(1)(i)-(iv) and SAE. It therefore seems that cranemanufacturers are so closely governed by OSHA standards that there is nodelegation of authority.Towne points out, however, that this crane was built in 1967, before theOSHA load limit standards became legally binding on the cranemanufacturer. Towne would apparently have us find that the load limitcalculations reflected in the manufacturer’s specifications booklet weremade when the crane was built. There is, however, no evidence tosupport that assumption; for one thing, the specifications booklet thatTowne introduced into evidence is not dated. If anything, the bookletsuggests that the calculations were made after the crane was built. Theload limit chart compiled by the Grove Manufacturing Company evidentlyreflects the substance of sections 1910.180(c)(1)(i)-(iv). For onething, it prescribes that load limits may not exceed 85% of the tippingload. This is precisely the percentage required by the OSHA standard atsection 1910.180(c)(1)(i) and by the standard upon which it is based,section 5-1.1.1-a. of ANSI B30.5-1968, _Safety Code for Crawler,Locomotive and Truck Cranes_ [hereinafter cited as \”ANSI\”], published bythe American National Standards Institute. See section 1910.189. Yet,the predecessor of the 1968 ANSI standard, section 1311(a) of ASAB30.2-1943 (reaff’d 1952), published by the American StandardsAssociation, prescribed only an 83% criterion. For all this recordshows, then, the crane manufacturer performed its calculations andsupplied the chart to Towne after the crane was built and perhaps afterthe OSHA standard became binding on the manufacturer. Given this gap inthe record, and the fact that the burden of proving that the standard isinvalid as applied is on Towne, _George C. Christopher & Sons,_ _Inc_.,82 OSAHRC 9\/A2, 10 BNA OSHC 1436, 1443, 1982 CCH OSHD ? 25,956, p.32,531 (No. 76-647, 1982), we could not declare the standard invalid asapplied.Finally, even if the calculations were made when the OSHA requirementswere not yet effective, we still would not be convinced that thestandard is invalid as applied. The validity of a delegation oflegislative authority to a private party depends on its reasonablenesswhen considered in light of the purpose of the statute or regulation andthe facts of the case. _Male v. Ernest Renda_ _Contracting Co_., 64N.J. 199, 314 A.2d 361 (1974), _cert. denied_, 419 U.S. 839 (1974). Onthe whole, it would not offend reason or fairness to apply this loadlimit chart to Towne. As we note above, the load limit chart for thiscrane reflects precisely those load-testing duties that the OSHAstandard imposes. Grove seems to have developed the chart according tothe same criteria that are in the OSHA standard. To require that acrane user in 1983 comply with a load limit chart based on thosecriteria is neither prejudicial, unreasonable, nor unfair. To refuse torequire it would be empty formalism.We therefore conclude that Towne failed to meet its burden of provingthat the standard is invalid as applied._Existence of Violative Condition_As we have said, citation 1 alleges that the angle of the crane’s boomwas too shallow for the load. Stated another way, the load was toogreat for the boom angle. Judge Burroughs found this allegationproven. We agree.[[7]]Whether the crane was overloaded depends on the load exerted on the boomand the load capacity. It is undisputed that the load exerted on theboom was at least 3,625 pounds. This is the sum of 3,250pounds–one-half of the weight of the steel mat, because one end of themat remained on the floor; and 375 pounds–the full weight of thespreader bar, which comes between the lifting hook and the mat to permita stable lift.[[8]] The primary question therefore, what was the loadcapacity?The crane manufacturer’s specifications applicable to this liftingoperation appear in a chart entitled \”JIB CAPACITIES.\” Both partiesaccept Judge Burroughs’s finding that the jib of the boom was notoffset; therefore, the capacity of the boom is found under the column\”No Offset.\” The chart provides:MIN. BOOM NOANGLE OFFSET63 degrees 4000 pounds50 degrees 2200 poundsThe boom here was at a 55? angle. Neither the specifications nor thechart itself state how to interpret the chart if the actual angle of theboom is not listed. Judge Burroughs interpolated between the 63 and 50degree angles in the chart and calculated that the maximum permissibleload for a boom at 55 degrees is 2,892 pounds.[[9]]Straight-line interpolation is a mathematical technique for computinghow much a change in one quantity will cause a change in a relatedquantity. It is often used intuitively and is sometimes known as the\”proportional parts\” method. It assumes that the rate of change betweentwo dependent variables is constant, that is, that a graph illustratingthe relationship between the variables is a straight line. Where, ashere, the two variables follow a curved line rather than a straightline, straight-line interpolation can, nevertheless, yield a closeapproximation of the correct answer.[[10]] Straight-line interpolationis also more practical to use by the ordinary crane operator at aconstruction site than curved-line interpolation, which requires one toplot points on graph paper and connect them with a french curve. Usingstraight-line interpolation here reveals that the crane was overloadedby at least 878 pounds, that is by about 30 percent of its capacity.[[11]]Towne objects, however, to the use of interpolation. Towne argues thatbecause the load chart does not tell an employer how to interpolate, thestandard requiring use of the load limitations is unconstitutionallyvague as applied. This argument represents something of a shift inTowne’s position. Before the judge, it was the Secretary who had arguedbriefly against interpolation, maintaining that if the actual boom anglefell between two angles listed on the chart, the operator must staywithin the load limit for the lower angle. Towne argued to thecontrary, observing that \”industry practice. . .is to interpolate on thestraight line basis,\” and that to require Towne to have instead used thenext lowest angle would raise constitutional vagueness problems. JudgeBurroughs examined the arguments and stated that \”[t]he view that thechart can be interpolated to determine the lifting capacity, asadvocated by Towne, is affirmed.\”We find no merit to Towne’s current argument that it lacked fair noticeof its obligation because the load chart does not tell an employer howto interpolate. First, Towne’s crane operator knew how to interpolateand actually used the technique. Mark Shumaker, the crane operator,testified that he used the technique of straight-line interpolation tointerpret the chart because he was told during a four-yearapprenticeship training program offered by the International Union ofOperating Engineers, Local 18, that it was a safe work practice. Second, Judge Burroughs credited the testimony of Towne’s expert witnessRobert Bobel, a structural engineer, that straight-line interpolation isthe practice followed by the construction industry in using load limitcharts. As the Secretary now observes, \”[i]t is obvious. . .thateveryone in the industry, and, in particular, this employer knewprecisely what the [load chart] called for.\” Towne’s fair noticeargument must therefore be rejected. _E.g., Owens-Corning FiberglassCorp. v._ _Donovan_, 659 F.2d 1285, 1288 (5th Cir. 1981) (proof ofindustry custom or employer’s actual knowledge of requirementssufficient to reject vagueness argument).We agree with Judge Burroughs that the load capacity of the crane was nomore than 2892 pounds. We find, moreover, that the load capacity of thecrane was actually 490 pounds less than that, i.e., about 2400 pounds. Charles Recard, a product safety and reliability engineer for GroveManufacturing Co., testified that two steel plates weighing 170 poundstogether had been added to each side of the boom at the nose, and thattwo steel plates weighing 320 pounds together had been added to theunderside of the jib. Recard stated that the crane manufacturer had notmade the additions, and that the additional weight of the plates wouldreduce the load capacity. Recard, an expert witness, testified that aconservative allowance would be to deduct the 490 pounds added by thesteel plates from the load _capacity_. Judge Burroughs held that thesteel plates were not required to be added to the _load_ because thesteel plates were not \”load handling devices\” within the meaning of note4 of the manufacturer’s specifications booklet. However, an OSHAstandard requires that the load capacity be reduced in this situation. See section 1926.550(a)(16) (if modifications made to crane, capacitycharts shall be changed accordingly). Following the conservativeapproach employed by Mr. Recard, we find that the load capacity of thiscrane was about 2400 pounds, about 17 percent less than the normal loadcapacity at 55 degrees.Towne argues that the crane could not have exceeded its load capacitybecause it did not tip over at the time of the accident. Towne assertsthat the manufacturer’s specifications regard tipping as the capacitylimitation, relying on note 1 of the crane’s specifications booklet,which reads:Rated lifting capacities are the maximum loads covered by themanufacturer’s warranty with the machine standing on a firm, level anduniform supporting surface. Capacities do not exceed eighty-five 85% oftipping. We agree with Judge Burroughs that Towne’s contention lacksmerit. The plain meaning of the second sentence at note 1 of thespecifications booklet is that rated lifting capacities are not morethan 85% of the load that it would take to tip a crane. This signifiesthat the tipping point of the crane is not the limit on the rated loadcapacity; rather, the rated load capacity would be no more than 85% ofthe tipping load. _See_ _also_ ANSI ? 5-1.1.1-a.(margin of stabilityfor load ratings is no more than 85 percent of truck-crane tippingloads; PCSA ?? 7.03(1) and 7.12.1.). And as Judge Burroughs noted, therated load capacity could be even less than that. That the crane didnot tip therefore does not mean that the load limit was not exceeded._Knowledge_In order to prove a violation, the Secretary must establish that Towneknew or could have known of the violative condition of the crane withthe exercise of reasonable diligence. _E.g_., _Sasser Electric &Manufacturing Co_., 84 OSAHRC 37\/C6, 11 BNA OSHC 2133, 2135, 1984-85 CCHOSHD ? 26,982, p. 34,684 (No. 82-178, 1984), _aff’d_, No. 84-1961 (4thCir. 1985). We have found that Towne’s crane was overloaded. There isno evidence that Towne actually knew of the overloaded condition. Theissue here is therefore whether Towne could have known of it withreasonable diligence. Judge Burroughs found that Towne could have knownof the crane’s overloaded condition had \”[p]roper steps . . . been takento insure an accurate computation of the total weight . . . .\” We agreethat Towne should have known of the overloaded condition of the crane.We find that Towne critically failed to exercise reasonable diligence intwo ways. First, though the crane operator was still an apprentice,Towne did not supervise his calculation of load capacity or inform himof important information about the crane’s load capacity. Second,though Towne certainly should have known the weight of the load becauseit fabricated both the mat to belifted and the spreader bar, Towne did not clearly and unambiguouslyrelay to the crane operator the precise, critical information.As we have noted, the weight of the steel plates that had been added tothe boom reduced the crane’s load capacity by about 17 percent. Yet,the crane operator testified that he did not know that any metal hadbeen added to the jib or the nose of the boom. That Towne did notcommunicate the consequent reduction of load capacity to the craneoperator shows a lack of reasonable diligence. It ensured that theoperator’s load calculations would always be in error by about 17 percent.We also find that Towne had no reliable means for unambiguously relayingcritical information about the load to the operator. On this point, therole of two Towne supervisors is important: Mead Shumaker, Towne’svice-president, general superintendent, and safety officer; and FredDycus, the ironworker foreman. Both men were at the jobsite when theoverload occurred; the vice-president was in the company trailer, whilethe ironworker foreman was in the hole guiding the mat while it wasbeing lifted. The vice-president testified that the replacing,repairing, and setting of the reinforced steel mats was the \”directresponsibility\” of ironworker foreman Fred Dycus. However, Dycus deniedat the hearing that he was the crane operator’s foreman, stating thatthe placing of the mat \”was up to\” the crane operator. Judge Burroughsrecognized in his decision that it was the crane operator, not Dycus,who had been given the \”last word\” on the safe lifting of a load. Nevertheless, the judge concluded that \”[p]roper steps have been takento insure an accurate computation of the total weight being lifted bythe crane.\”We agree with Judge Burroughs. That Towne’s highest supervisors on thesite lacked a clear idea of who was to oversee the work of an apprenticecrane operator is telling enough. Moreover, though the vice-presidentand Dycus had particular knowledge of the weights of some components ofthe load, they did not reliably communicate that information to thecrane operator. We discuss here two instances of that.The crane operator testified that he never knew that the spreader barweighed. According to the vice-president, the ironworker foreman haddesigned the spreader bar and had overseen its fabrication at the Timkensite by Towne employees. The vice-president had arranged to have theweight of the spreader bar calculated for Dycus by the structuralmanager. The vice- president testified that the structural manager hadtold him that the spreader bar weighed about 375 pounds, and it was partof foreman Dycus’ job to tell the crane operator what the spreader barweighed. Yet, because he was not told of the bar’s true weight, thecrane operator was left to make his \”own visual estimate.\” That thecrane operator turned out to have overestimated the bar’s weight thebar’s weight as 500 pounds is fortunate but irrelevant. The factremains that the failure by Towne’s supervisors to inform the craneoperator of the spreader bar’s true weight demonstrated such casualnessas to amount to a lack of reasonable diligence.Finally, Towne does not seem to have accurately assessed or communicatedinformation about the weight of the mat, despite the fact that the matwas fabricated by Towne itself. Ironworker foreman Dycus testified thathe calculated the weight of the steel mat as 6,300 pounds, and he toldthe crane operator that. Dycus testified also that he had overestimatedthe weight by what he thought was about 300 to 500 pounds because he hadrounded off some figures. In other words, Dycus had calculated themat’s weight to be 5,800 to 6,000 pounds but had added 300 to 500 toadjust for some rounded numbers. It was, however, stipulated at thehearing that the mat actually weighed about 6,500 pounds (6,497.3pounds, to be exact). Therefore, Dycus had in fact underestimated theweight of the mat by at least 200 pounds. More importantly, the craneoperator testified that Dycus told him that the weight was around 6,000pounds, which is 300 pounds less than what Dycus stated at he told thecrane operator, and almost 500 pounds less than the mat’s true weight. Based on the record as a whole, we conclude that Towne failed to conveyvital information to the crane operator. We therefore find that Townethrough its supervisors vice-president Shumaker and ironworker foremanDycus could have known of the overloaded condition of the crane had itbeen reasonably diligent. We thus affirm citation 1.We also characterize the violation as serious under section 17(k) of theAct, 29 U.S.C. ? 666(k), because, as demonstrated by a fatality thatoccurred when the boom collapsed, there was a substantial probabilitythat death or serious physical harm could result from the excessive loadon the boom. In light of the criteria in section 17(j) of the Act, 29U.S.C. ? 666(j), particularly the gravity of the violation, we affirmthe judge’s assessment of a $240 penalty._Citation 2: 29 C.F.R. ? 1926.550(a)(2), Failure__to Conspicuously Post Load Capacity Chart_In citation 2, the Secretary alleged that Towne violated 29 C.F.R. ?1926.550(a)(2), which reads as follows:? 1926.550 _Cranes and derricks._(a) _General requirements_.* * *(2) Rated load capacities, and recommended operating speeds, specialhazard warnings, or instruction, shall be conspicuously posted on allequipment. Instructions or warnings shall be visible to the operatorwhile he is at his control station.Judge Burroughs affirmed the citation.It was undisputed that at the time of the accident the load capacitychart was not \”conspicuously posted\” on the crane. Instead, it was inthe crane operator’s toolbox. The crane operator had removed it fromthe door to the cab of the crane the day before in order to read thechart during lunch and, rather than replacing it, he put it in histoolbox. The Secretary does not claim that Towne had actual knowledgethat the capacity chart was no longer posted. Therefore, the only issueon review is whether Towne could have known of that violative conductwith the exercise of reasonable diligence. Towne argues that the craneoperator’s removal of the chart could not have been known with theexercise of reasonable diligence. We agree.Towne had a plan of periodic inspections of the crane. About 3 weeksbefore the accident, Richard Mazeroski, an \”oiler\” employed by Towne,inspected the crane and found that the load chart was posted on theinside of the door to the crane’s cab. The crane operator stated thatthe chart was there when he took it to read the day before theaccident. It was not established that any supervisory employee of Townewould have had the opportunity to observe that the load chart was notposted inside the cab. Because Towne could not reasonably have known ofthe absence of the load chart, we vacate citation 2.Accordingly, we affirm citation 1 and assess a penalty of $240, andvacate citation 2.FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED: DEC 4 1986————————————————————————The Administrative Law Judge decision in this matter is unavailable inthis format. To obtain a copy of this document, please request one fromour Public Information Office by e-mail ( [email protected] ), telephone (202-606-5398), fax(202-606-5050), or TTY (202-606-5386).————————————————————————FOOTNOTES:[[1]] This standard was originally adopted under the Contract Work Hoursand Safety Standards Act, 40 U.S.C. ? 327 _et_ _seq_. (commonly known asthe \”Construction Safety Act\”). 36 Fed. Reg. 7340, 7383 (1971),_adopting_ 29 C.F.R. ? 1518.550(a)(1), _redesignated_ as ?1926.550(a)(1), 36 Fed. Reg. 25232 (1971). It was later adopted withoutfurther rulemaking under section 6(a) of the Occupational Safety andHealth Act, 29 U.S.C. ? 655(a). 36 Fed. Reg. 10466 (1971),_promulgating_ 29 C.F.R. ? 1910.12 (adopting by reference allConstruction Safety Act standards).[[2]] See _Noblecraft Industries, Inc. v. Secretary of Labor_, 614 F.2d199, 203 (9th Cir. 1980) (delegation by Congress to the Secretary, notto private concern); _Sorrell v. SEC_, 679 F.2d 1323, 1325-26 & n.2 (9thCir. 1982) (statute permitting private body to adopt rules anddiscipline its members subject to review and approval or disapproval bythe Securities and Exchange Commission; no delegation to private partybecause ultimate authority in SEC); _First Jersey Securities, Inc. v.Bergen_, 605 F.2d 690, 697 (3d Cir. 1979), _cert_. _denied_, 444 U.S.1074 (1980) (same); _Todd & Co., Inc. v. SEC_, 557 F.2d 1008, 1012-13(3d Cir. 1977) (same); _Pennsylvania Railroad Co. v. Sharfsin_, 369 F.2d276, 278-79 n.2, 283 (3d Cir. 1966), _cert_. _denied_, 386 U.S. 982(1967) (railroad could discontinue route upon proper filing andwaiting); and _New Motor Vehicle Board of California v. Orrin W_. _FoxCo_., 439 U.S. 96, 107-09 (1978) (statute conferred on automobilefranchisees merely procedural right to delay action pending hearing).[[3]] As Judge Burroughs observed:[I]t is true that there is no absolute guarantee that any particularmanufacturer will develop load limitations in strict compliance with thecriteria specified . . . . [But] [t]here is no guarantee that anyemployer will follow any safety regulation promulgated by theSecretary. This fact does not render the regulations invalid._Cf_. _Northwest Airlines, Inc_., 80 OSAHRC 87\/B5, 8 BNA OSHC 1982,1992, 1980 CCH OSHD ? 24,751, p. 30,490 (No. 13649, 1980) (that FAAprivate regulation system is not ideal is not reason to reject thatprocedure entirely; \”no system that the FAA might follow would guaranteethat airlines would always follow safe procedures.\”).[[4]] Those standards provide (footnote on chart deleted):(c) _Load ratings_–(1) _Load ratings–where stability governs liftingperformance_. (i) The margin of stability for determination of loadratings, with booms of stipulated lengths at stipulated working radiifor the various types of crane mountings, is established by taking apercentage of the loads which will produce a condition of tipping orbalance with the boom in the least stable direction, relative to themounting. The load ratings shall not exceed the following percentagesfor cranes, with the indicated types of mounting under conditionsstipulated in subdivisions (ii) and (iii) of this subparagraph.\tMaximum\tload\tratingsType of crane mounting \t(percent of\ttipping\tloads)Locomotive, without outriggers: \tBooms 60 feet or less …………………. \t85Booms over 60 feet …………………….. \t85Locomotive, using outriggers fully extended ……………. \t80Crawler, without outriggers ………………………………….. \t75Crawler, using outriggers fully extended ………………… \t85Truck and wheel mounted without outriggers or \tusing outriggers fully extended …………. \t85(ii) The following stipulations shall govern the application of thevalues in paragraph (c)(1)(i) of this section for locomotive cranes:(_a_) Tipping with or without the use of outriggers occurs when half ofthe wheels farthest from the load leave the rail.(_b_) The crane shall be standing on track which is level within 1percent grade.(_c_) Radius of the load is the horizontal distance from a projection ofthe axis of rotation to the rail support surface, before loading, to thecenter of vertical hoist line or tackle with load applied.(_d)_ Tipping loads from which ratings are determined shall be appliedunder static conditions only, i.e., without dynamic effect of hoisting,lowering, or swinging.(_e_) The weight of all auxiliary handling devices such as hoist blocks,hooks, and slings shall be considered a part of the load rating.(iii) Stipulations governing the application of the values in paragraph(c)(1)(i) of this section for crawler, truck, and wheel- mounted cranesshall be in accordance with Crane Load-Stability Test Code, Society ofAutomotive Engineers (SAE) J765.(iv) The effectiveness of these proceeding stability factors will beinfluenced by such additional factors as freely suspended loads, track,wind, or ground conditions, condition and inflation of rubber tires,boom lengths, proper operating speeds for existing conditions, and, ingeneral, careful and competent operation. All of these shall be takeninto account by the user.[[5]] The Judge relied on 29 C.F.R. ? 1926.550(b)(2) which requires that\”[a]ll . . . truck . . . cranes in use shall meet the applicablerequirements for design, . . .testing, . . . and operation as prescribedin the ANSI B30.5-1968, Safety Code for Crawler, Locomotive and TruckCranes.\” However, section 1926.550(b)(2) applies only to employers inthe construction industry, and not to crane manufacturers generally. See29 C.F.R. ? 1910.12(a) (defining \”construction work\”). Section1910.180 is therefore the pertinent section in determining what legalrequirements constrain crane manufacturers when they calculate load limits.[[6]] The PCSA standard is incorporated by reference as an OSHA standardat 29 C.F.R. ? 1926.550(a)(17).[[7]] Towne argues that evidence as to the structural weakness of theboom should be considered. The issue before us is not what caused anaccident, but whether a violation of an OSHA standard occurred. _See_,_e.g_., _Concrete Construction Corp._, 76 OSAHRC 47\/A2, 4 BNA OSHC 1133,1135, 1975-76 CCH OSHD ? 20,610, p. 24,664 (No. 2490, 1976); _see__also_ _The Boeing Co.,_ 77 OSAHRC 188\/D13, 5 BNA OSHC 2014, 2016,1977-78 CCH OSHD ? 22,266, p. 26,809 (No. 12879, 1977). Inasmuch asevidence on the structural integrity of the boom is irrelevant to theissues before us in this case, we do not consider it.[[8]] The parties dispute whether the 145-pound headache ball that wasattached directly over the hook should have been included in the load. Note 4 of the manufacturer’s specifications booklet states that \”[t]heweights of all load handling devices are considered part of the loadlifted and suitable allowances for them should be made.\” We find itunnecessary to resolve this dispute because we find that the crane wasoverloaded even if the headache ball were excluded.[[9]] The load chart states that the crane has a 2200 pound capacity at50 degrees and a 4000 capacity at 63 degrees. Inasmuch as a 13 degreedifference in boom angle corresponds to a 1800 pound difference in loadcapacity, one can say that for loads between 2200 and 4000 pounds, thereis a 138.46 pound increase in capacity per degree (1800\/13). Therefore,the capacity at 55 degrees is 692 pounds (5 x 138.46) greater than thecapacity at 50 degrees, that is, 692 + 2200 = 2892 pounds.[[10]] That the two variables here follow a curved line is apparent fromthe load limit chart, for the ratio of the change in capacity to thechange in corresponding boom angle varies between the entries in thechart. Also, when the entries in the chart are plotted as points ongraph paper, the points form a curved line. Curved-line interpolationfrom such a graph shows that the capacity at 55 degrees is about 2600pounds. Our finding that the crane was overloaded does not depend onthis figure because the Secretary has not sought to predicate aviolation on figures derived from curved-line interpolation; we willinstead continue to employ the figure derived from straight-lineinterpolation, which is more favorable to Towne.[[11]] Actually the crane was more overloaded than that. Some of thereasons for this are discussed below.”