“Docket No. 83-1262 SECRETARY OF LABOR,Complainant,v.THE TOWNE CONSTRUCTION COMPANY,Respondent.OSHRC Docket No. 83-1262DECISION Before:\u00a0 BUCKLEY, Chairman; WALL, Commissioner. BY THE COMMISSION:This case is before the Occupational Safety and Health Review Commission under 29U.S.C. ? 661(j), section 12(j) of the Occupational Safety and Health Act of 1970, 29U.S.C. ?? 651-678 (\”the Act\”).\u00a0 The Commission is an adjudicatory agency,independent of the Department of Labor and the Occupational Safety and HealthAdministration (\”OSHA\”).\u00a0 It was established to resolve disputes arisingout of enforcement actions brought by the Secretary of Labor under the Act and has noregulatory functions.\u00a0 See section 10(c) of the Act, 29 U.S.C. ? 659(c).Towne Construction Company is a Canton, Ohio, general constructioncontractor.\u00a0 In 1983 Towne held a subcontract to construct a water reservoir atTimken Steel’s new Faircrest Steel plant in Canton.\u00a0 On September 27, 1983, it was inthe process of tying reinforcing steel (\”rebars\”) into mats, which would beinstalled in the walls of the reservoir before concrete was poured.\u00a0 A 25-tonGrove truck crane was used to lift the mat from its horizontal position to a nearlyvertical position, where it would be tied off and then put into the wall by a smallercrane.\u00a0 When one end of the mat was nearly vertical to the floor, the boom of thecrane collapsed, causing the steel mat to strike and kill one of Towne’s employees who wason the floor assisting in the positioning of the mat.The Secretary of Labor issued citations to Towne alleging violations of two cranesafety standards.\u00a0 Administrative Law Judge James D. Burroughs affirmed bothcitations.\u00a0 We affirm one citation and vacate the other.Citation 1:\u00a0 29 C.F.R. ? 1926.550(a)(1), Exceeding Crane Manufacturer’s LoadLimitationsIn 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 that required by the crane manufacturer’s loadlimitations chart to lift a load of the weight involved here. \u00a0The standard provides:? 1926.550 Cranes and derricks.(a) General requirements.\u00a0 (1) The employer shall comply with themanufacturer’s specifications and limitations applicable to the operation of any and allcranes and derricks. . . .Delegation IssueTowne argues that the first sentence of section 1926.550(a)(1) constitutes an invaliddelegation to crane manufacturers by the Secretary of the legislative authority thatCongress granted exclusively to the Secretary.[[1]]\u00a0 Towne points out that the firstsentence of the standard requires an employer to comply with specifications andlimitations set by crane manufacturers, not by the Secretary.\u00a0 Judge Burroughsconcluded that Towne had not proven that the standard contained an invalid delegation oflegislative authority.\u00a0 We agree, though for somewhat different reasons.Both Towne and the Secretary cite a number of cases to support theirpositions.\u00a0 Towne cites Gibson v. Berryhill, 411 U.S. 564, 578-79 (1973); Carterv. Carter Coal Co., 298 U.S. 238, 310-12 (1936); Eubank v. City of Richmond,226 U.S. 137, 143-44 (1912).\u00a0 There, the Supreme Court found unconstitutionaldelegations in statutes authorizing persons to develop regulations that their actual orpotential competitors would be required to comply with.\u00a0 Here, however, the cranemanufacturer who developed the load chart was not an economic competitor of the craneuser.\u00a0 The cases cited by the Secretary can also be distinguished; for example, manydo not involve delegations to private persons or businesses.[[2]]Like Judge Burroughs, we find that other crane standards adopted by the Secretary,particularly 29 C.F.R. ?? 1910.180(c)(1)(i)-(iv) and 1926.550(b)(2), cast moreillumination on the delegation question.\u00a0 Given these other standards, as explainedmore fully below, we conclude that the first sentence of section 1925.550(a)(1) can bevalidly applied in many cases.\u00a0 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 to cranemanufacturers.\u00a0 The standard unambiguously states that employers \”shall complywith the manufacturer’s specifications and limitations applicable to the operation of. ..all cranes. . . .\” The Secretary argues, however, that there is no true delegationin this case because OSHA regulations very closely prescribe the methods cranemanufacturers must use in determining crane load limits.\u00a0 This argument is generallysound.\u00a0 Legally binding regulations can so closely circumscribe the discretion of acrane manufacturer in calculating load limits that it would be the government rather thanthe manufacturer that would be effectively prescribing the duty of a crane user.\u00a0This system of regulation need not be perfect.[[3]]\u00a0 Furthermore, some relianceon manufacturers to calculate specifications for their products is unavoidable. Simplystated, the federal government must rely on private organizations to establish suchspecialized criteria as load charts because it would be neither practical nor efficientfor the government to set or approve load-limit capacity tables for every model of cranein use.\u00a0 This practical consideration deserves some weight.\u00a0 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 procedures that cranemanufacturers must follow in calculating load limits.[[5]]\u00a0 In particular, section1910.180(c)(1)(iii) requires the manufacturer to comply with SAE J765, Crane LoadStability Test Code (1967) [hereinafter cited as \”SAE\”], a \”RecommendedPractice\” published by the Society of Automotive Engineers, Inc., reproduced asAppendix F of PCSA Standard No. 2, Mobile Hydraulic Crane Standards (1968)[hereinafter cited as \”PCSA\”], published by the Power Crane and ShovelAssociation.\u00a0 That code is very detailed in describing how a crane load’slimits are to be calculated.[[6]]\u00a0 The manufacturer of a crane is therefore not leftto his own devices in calculating load limits, but is answerable to the OccupationalSafety and Health Administration through section 1910.180(c)(1)(i)-(iv) and SAE.\u00a0 Ittherefore seems that crane manufacturers are so closely governed by OSHA standards thatthere is no delegation of authority.Towne points out, however, that this crane was built in 1967, before the OSHA loadlimit standards became legally binding on the crane manufacturer.\u00a0 Towne wouldapparently have us find that the load limit calculations reflected in the manufacturer’sspecifications booklet were made when the crane was built.\u00a0 There is, however, noevidence to support that assumption; for one thing, the specifications booklet that Towneintroduced into evidence is not dated.\u00a0 If anything, the booklet suggests that thecalculations were made after the crane was built.\u00a0 The load limit chart compiled bythe Grove Manufacturing Company evidently reflects the substance of sections1910.180(c)(1)(i)-(iv).\u00a0 For one thing, it prescribes that load limits may not exceed85% of the tipping load.\u00a0 This is precisely the percentage required by the OSHAstandard at section 1910.180(c)(1)(i) and by the standard upon which it is based, section5-1.1.1-a. of ANSI B30.5-1968, Safety Code for Crawler, Locomotive and Truck Cranes[hereinafter cited as \”ANSI\”], published by the American National StandardsInstitute.\u00a0 See section 1910.189.\u00a0 Yet, the predecessor of the 1968 ANSIstandard, section 1311(a) of ASA B30.2-1943 (reaff’d 1952), published by the AmericanStandards Association, prescribed only an 83% criterion.\u00a0 For all this record shows,then, the crane manufacturer performed its calculations and supplied the chart to Towneafter the crane was built and perhaps after the OSHA standard became binding on themanufacturer.\u00a0 Given this gap in the record, and the fact that the burden of provingthat the standard is invalid 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 as applied.Finally, even if the calculations were made when the OSHA requirements were not yeteffective, we still would not be convinced that the standard is invalid as applied. \u00a0The validity of a delegation of legislative authority to a private party depends on itsreasonableness when considered in light of the purpose of the statute or regulation andthe facts of the case.\u00a0 Male v. Ernest Renda Contracting Co., 64 N.J.199, 314 A.2d 361 (1974), cert. denied, 419 U.S. 839 (1974).\u00a0 On the whole, itwould not offend reason or fairness to apply this load limit chart to Towne. \u00a0As wenote above, the load limit chart for this crane reflects precisely those load-testingduties that the OSHA standard imposes.\u00a0 Grove seems to have developed the chartaccording to the same criteria that are in the OSHA standard.\u00a0 To require that acrane user in 1983 comply with a load limit chart based on those criteria is neitherprejudicial, unreasonable, nor unfair.\u00a0 To refuse to require it would be emptyformalism.We therefore conclude that Towne failed to meet its burden of proving that thestandard is invalid as applied.Existence of Violative ConditionAs we have said, citation 1 alleges that the angle of the crane’s boom wastoo shallow for the load.\u00a0 Stated another way, the load was too great for the boomangle. \u00a0Judge Burroughs found this allegation proven.\u00a0 We agree.[[7]]Whether the crane was overloaded depends on the load exerted on the boom and the loadcapacity.\u00a0 It is undisputed that the load exerted on the boom was at least 3,625pounds.\u00a0 This is the sum of 3,250 pounds–one-half of the weight of the steel mat,because one end of the mat remained on the floor; and 375 pounds–the full weight of thespreader bar, which comes between the lifting hook and the mat to permit a stablelift.[[8]]\u00a0 The primary question therefore, what was the load capacity?The crane manufacturer’s specifications applicable to this lifting operationappear in a chart entitled \”JIB CAPACITIES.\”\u00a0 Both parties accept JudgeBurroughs’s finding that the jib of the boom was not offset; therefore, the capacity ofthe boom is found under the column \”No Offset.\”\u00a0 The chart provides:MIN. BOOM\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 NOANGLE\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0OFFSET63 degrees \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a04000 pounds50 degrees \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a02200 poundsThe boom here was at a 55? angle.\u00a0 Neither the specifications nor the chart itselfstate how to interpret the chart if the actual angle of the boom is not listed. \u00a0Judge Burroughs interpolated between the 63 and 50 degree angles in the chart andcalculated that the maximum permissible load for a boom at 55 degrees is 2,892pounds.[[9]]Straight-line interpolation is a mathematical technique for computing how much achange in one quantity will cause a change in a related quantity. It is often usedintuitively and is sometimes known as the \”proportional parts\” method.\u00a0 Itassumes that the rate of change between two dependent variables is constant, that is, thata graph illustrating the relationship between the variables is a straight line. \u00a0Where, as here, the two variables follow a curved line rather than a straight line,straight-line interpolation can, nevertheless, yield a close approximation of the correctanswer.[[10]]\u00a0 Straight-line interpolation is also more practical to use by theordinary crane operator at a construction site than curved-line interpolation, whichrequires one to plot points on graph paper and connect them with a french curve. \u00a0Using straight-line interpolation here reveals that the crane was overloaded by at least878 pounds, that is by about 30 percent of its capacity.[[11]]Towne objects, however, to the use of interpolation.\u00a0 Towne argues that because theload chart does not tell an employer how to interpolate, the standard requiring use of theload limitations is unconstitutionally vague as applied.\u00a0 This argument representssomething of a shift in Towne’s position.\u00a0 Before the judge, it was the Secretary whohad argued briefly against interpolation, maintaining that if the actual boom angle fellbetween two angles listed on the chart, the operator must stay within the load limit forthe lower angle.\u00a0 Towne argued to the contrary, observing that \”industrypractice. . .is to interpolate on the straight line basis,\” and that to require Towneto have instead used the next lowest angle would raise constitutional vagueness problems.\u00a0Judge Burroughs examined the arguments and stated that \”[t]he view that thechart can be interpolated to determine the lifting capacity, as advocated by Towne, isaffirmed.\”We find no merit to Towne’s current argument that it lacked fair notice of itsobligation because the load chart does not tell an employer how to interpolate. \u00a0First, Towne’s crane operator knew how to interpolate and actually used thetechnique.\u00a0 Mark Shumaker, the crane operator, testified that he used the techniqueof straight-line interpolation to interpret the chart because he was told during afour-year apprenticeship training program offered by the International Union of OperatingEngineers, Local 18, that it was a safe work practice.\u00a0 Second, Judge Burroughscredited the testimony of Towne’s expert witness Robert Bobel, a structural engineer, thatstraight-line interpolation is the practice followed by the construction industry in usingload limit charts.\u00a0 As the Secretary now observes, \”[i]t is obvious. . .thateveryone in the industry, and, in particular, this employer knew precisely what the [loadchart] called for.\”\u00a0 Towne’s fair notice argument must therefore be rejected.\u00a0 E.g., Owens-Corning Fiberglass Corp. v. Donovan, 659 F.2d 1285, 1288(5th Cir. 1981) (proof of industry 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 no more than2892 pounds.\u00a0 We find, moreover, that the load capacity of the crane was actually 490pounds less than that, i.e., about 2400 pounds.\u00a0 Charles Recard, a product safety andreliability engineer for Grove Manufacturing Co., testified that two steel plates weighing170 pounds together had been added to each side of the boom at the nose, and that twosteel plates weighing 320 pounds together had been added to the underside of thejib.\u00a0 Recard stated that the crane manufacturer had not made the additions, and thatthe additional weight of the plates would reduce the load capacity. \u00a0Recard, anexpert witness, testified that a conservative allowance would be to deduct the 490 poundsadded by the steel plates from the load capacity.\u00a0 Judge Burroughs held thatthe steel plates were not required to be added to the load because the steel plateswere not \”load handling devices\” within the meaning of note 4 of themanufacturer’s specifications booklet. However, an OSHA standard requires that the loadcapacity be reduced in this situation.\u00a0 See section 1926.550(a)(16) (if modificationsmade to crane, capacity charts shall be changed accordingly). \u00a0Following theconservative approach employed by Mr. Recard, we find that the load capacity of this cranewas about 2400 pounds, about 17 percent less than the normal load capacity at 55 degrees.Towne argues that the crane could not have exceeded its load capacity because itdid not tip over at the time of the accident.\u00a0 Towne asserts that the manufacturer’sspecifications regard tipping as the capacity limitation, relying on note 1 of the crane’sspecifications booklet, which reads:Rated lifting capacities are the maximum loads covered by the manufacturer’swarranty with the machine standing on a firm, level and uniform supporting surface.Capacities do not exceed eighty-five 85% of tipping.\u00a0 We agree with Judge Burroughsthat Towne’s contention lacks merit.\u00a0 The plain meaning of the second sentence atnote 1 of the specifications booklet is that rated lifting capacities are not more than85% of the load that it would take to tip a crane.\u00a0 This signifies that the tippingpoint of the crane is not the limit on the rated load capacity; rather, the rated loadcapacity would be no more than 85% of the tipping load.\u00a0 See also ANSI? 5-1.1.1-a.(margin of stability for load ratings is no more than 85 percent oftruck-crane tipping loads; PCSA ?? 7.03(1) and 7.12.1.).\u00a0 And as Judge Burroughsnoted, the rated load capacity could be even less than that.\u00a0 That the crane did nottip therefore does not mean that the load limit was not exceeded.KnowledgeIn order to prove a violation, the Secretary must establish that Towne knew or could haveknown of the violative condition of the crane with the exercise of reasonable diligence.\u00a0 E.g., Sasser Electric & Manufacturing Co., 84 OSAHRC 37\/C6, 11BNA OSHC 2133, 2135, 1984-85 CCH OSHD ? 26,982, p. 34,684 (No. 82-178, 1984), aff’d,No. 84-1961 (4th Cir. 1985).\u00a0 We have found that Towne’s crane was overloaded.\u00a0There is no evidence that Towne actually knew of the overloaded condition. \u00a0Theissue here is therefore whether Towne could have known of it with reasonablediligence.\u00a0 Judge Burroughs found that Towne could have known of the crane’soverloaded condition had \”[p]roper steps . . . been taken to insure an accuratecomputation of the total weight . . . .\” We agree that Towne should have known of theoverloaded condition of the crane.We find that Towne critically failed to exercise reasonable diligence in twoways.\u00a0 First, though the crane operator was still an apprentice, Towne did notsupervise his calculation of load capacity or inform him of important information aboutthe crane’s load capacity.\u00a0 Second, though Towne certainly should have known theweight of the load because it fabricated both the mat to belifted and the spreader bar, Towne did not clearly and unambiguously relay to the craneoperator the precise, critical information. As we have noted, the weight of the steel plates that had been added to the boomreduced the crane’s load capacity by about 17 percent.\u00a0 Yet, the crane operatortestified that he did not know that any metal had been added to the jib or the nose of theboom. That Towne did not communicate the consequent reduction of load capacity to thecrane operator shows a lack of reasonable diligence.\u00a0 It ensured that the operator’sload calculations would always be in error by about 17 percent.We also find that Towne had no reliable means for unambiguously relaying criticalinformation about the load to the operator.\u00a0 On this point, the role of two Townesupervisors is important:\u00a0 Mead Shumaker, Towne’s vice-president, generalsuperintendent, and safety officer; and Fred Dycus, the ironworker foreman.\u00a0 Both menwere at the jobsite when the overload occurred; the vice-president was in the companytrailer, while the ironworker foreman was in the hole guiding the mat while it was beinglifted. The vice-president testified that the replacing, repairing, and setting of thereinforced steel mats was the \”direct responsibility\” of ironworker foreman FredDycus.\u00a0 However, Dycus denied at the hearing that he was the crane operator’sforeman, stating that the placing of the mat \”was up to\” the crane operator.\u00a0Judge Burroughs recognized in his decision that it was the crane operator, notDycus, who had been given the \”last word\” on the safe lifting of a load. \u00a0Nevertheless, the judge concluded that \”[p]roper steps have been taken to insure anaccurate computation of the total weight being lifted by the crane.\”We agree with Judge Burroughs.\u00a0 That Towne’s highest supervisors on the sitelacked a clear idea of who was to oversee the work of an apprentice crane operator istelling enough.\u00a0 Moreover, though the vice-president and Dycus had particularknowledge of the weights of some components of the load, they did not reliably communicatethat information to the crane operator.\u00a0 We discuss here two instances of that.The crane operator testified that he never knew that the spreader barweighed.\u00a0 According to the vice-president, the ironworker foreman had designed thespreader bar and had overseen its fabrication at the Timken site by Towne employees.\u00a0The vice-president had arranged to have the weight of the spreader bar calculatedfor Dycus by the structural manager.\u00a0 The vice- president testified that thestructural manager had told him that the spreader bar weighed about 375 pounds, and it waspart of foreman Dycus’ job to tell the crane operator what the spreader bar weighed.\u00a0Yet, because he was not told of the bar’s true weight, the crane operator was leftto make his \”own visual estimate.\”\u00a0 That the crane operator turned out tohave overestimated the bar’s weight the bar’s weight as 500 pounds is fortunate butirrelevant.\u00a0 The fact remains that the failure by Towne’s supervisors to inform thecrane operator of the spreader bar’s true weight demonstrated such casualness as to amountto 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 mat was fabricated byTowne itself.\u00a0 Ironworker foreman Dycus testified that he calculated the weight ofthe steel mat as 6,300 pounds, and he told the crane operator that.\u00a0 Dycus testifiedalso that he had overestimated the weight by what he thought was about 300 to 500 poundsbecause he had rounded off some figures.\u00a0 In other words, Dycus had calculated themat’s weight to be 5,800 to 6,000 pounds but had added 300 to 500 to adjust for somerounded numbers.\u00a0 It was, however, stipulated at the hearing that the mat actuallyweighed about 6,500 pounds (6,497.3 pounds, to be exact).\u00a0 Therefore, Dycus had infact underestimated the weight of the mat by at least 200 pounds.\u00a0 More importantly,the crane operator testified that Dycus told him that the weight was around 6,000 pounds,which is 300 pounds less than what Dycus stated at he told the crane operator, and almost500 pounds less than the mat’s true weight.\u00a0 Based on the record as a whole, weconclude that Towne failed to convey vital information to the crane operator.\u00a0 Wetherefore find that Towne through its supervisors vice-president Shumaker and ironworkerforeman Dycus could have known of the overloaded condition of the crane had it beenreasonably diligent.\u00a0 We thus affirm citation 1.We also characterize the violation as serious under section 17(k) of the Act, 29U.S.C. ? 666(k), because, as demonstrated by a fatality that occurred when the boomcollapsed, there was a substantial probability that death or serious physical harm couldresult from the excessive load on the boom.\u00a0 In light of the criteria in section17(j) of the Act, 29 U.S.C. ? 666(j), particularly the gravity of the violation, weaffirm the judge’s assessment of a $240 penalty.Citation 2:\u00a0 29 C.F.R. ? 1926.550(a)(2), Failure to Conspicuously Post Load Capacity ChartIn 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, special hazard warnings, orinstruction, shall be conspicuously posted on all equipment.\u00a0 Instructions orwarnings shall be visible to the operator while he is at his control station.Judge Burroughs affirmed the citation.It was undisputed that at the time of the accident the load capacity chart was not\”conspicuously posted\” on the crane.\u00a0 Instead, it was in the craneoperator’s toolbox.\u00a0 The crane operator had removed it from the door to the cab ofthe crane the day before in order to read the chart during lunch and, rather thanreplacing it, he put it in his toolbox.\u00a0 The Secretary does not claim that Towne hadactual knowledge that the capacity chart was no longer posted.\u00a0 Therefore, the onlyissue on review is whether Towne could have known of that violative conduct with theexercise of reasonable diligence.\u00a0 Towne argues that the crane operator’s removal ofthe chart could not have been known with the exercise of reasonable diligence.\u00a0 Weagree.Towne had a plan of periodic inspections of the crane.\u00a0 About 3 weeks beforethe accident, Richard Mazeroski, an \”oiler\” employed by Towne, inspected thecrane and found that the load chart was posted on the inside of the door to the crane’scab.\u00a0 The crane operator stated that the chart was there when he took it to read theday before the accident.\u00a0 It was not established that any supervisory employee ofTowne would have had the opportunity to observe that the load chart was not posted insidethe cab. Because Towne could not reasonably have known of the absence of the load chart,we vacate citation 2.Accordingly, we affirm citation 1 and assess a penalty of $240, and vacatecitation 2.FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED:\u00a0 DEC 4 1986The Administrative Law Judge decision in this matter is unavailable in this format. Toobtain a copy of this document, please request one from our Public Information Office bye-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 Hours andSafety Standards Act, 40 U.S.C. ? 327 et seq. (commonly known as the\”Construction Safety Act\”).\u00a0 36 Fed. Reg. 7340, 7383 (1971), adopting29 C.F.R. ? 1518.550(a)(1), redesignated as ? 1926.550(a)(1), 36 Fed. Reg. 25232(1971).\u00a0 It was later adopted without further rulemaking under section 6(a) of theOccupational Safety and Health Act, 29 U.S.C. ? 655(a). 36 Fed. Reg. 10466 (1971), promulgating29 C.F.R. ? 1910.12 (adopting by reference all Construction Safety Act standards).[[2]] See Noblecraft Industries, Inc. v. Secretary of Labor, 614 F.2d 199,203 (9th Cir. 1980) (delegation by Congress to the Secretary, not to private concern); Sorrellv. SEC, 679 F.2d 1323, 1325-26 & n.2 (9th Cir. 1982) (statute permitting privatebody to adopt rules and discipline its members subject to review and approval ordisapproval by the Securities and Exchange Commission; no delegation to private partybecause ultimate authority in SEC); First Jersey Securities, Inc. v. Bergen, 605F.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); PennsylvaniaRailroad Co. v. Sharfsin, 369 F.2d 276, 278-79 n.2, 283 (3d Cir. 1966), cert. denied,386 U.S. 982 (1967) (railroad could discontinue route upon proper filing and waiting); andNew Motor Vehicle Board of California v. Orrin W. Fox Co., 439 U.S. 96,107-09 (1978) (statute conferred on automobile franchisees merely procedural right todelay action pending hearing).[[3]] As Judge Burroughs observed:[I]t is true that there is no absolute guarantee that any particular manufacturerwill develop load limitations in strict compliance with the criteria specified . . . .[But] [t]here is no guarantee that any employer will follow any safety regulationpromulgated by the Secretary.\u00a0 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 FAA private regulationsystem is not ideal is not reason to reject that procedure entirely; \”no system thatthe FAA might follow would guarantee that airlines would always follow safeprocedures.\”).[[4]] Those standards provide (footnote on chart deleted):(c) Load ratings–(1) Load ratings–where stability governs lifting performance.\u00a0 (i) The margin of stability for determination of load ratings, with booms ofstipulated lengths at stipulated working radii for the various types of crane mountings,is established by taking a percentage of the loads which will produce a condition oftipping or balance with the boom in the least stable direction, relative to the mounting.\u00a0 The load ratings shall not exceed the following percentages for cranes, with theindicated types of mounting under conditions stipulated in subdivisions (ii) and (iii) ofthis subparagraph. Maximum load ratings Type of crane mounting (percent of tipping loads) Locomotive, without outriggers: Booms 60 feet or less …………………. 85 Booms over 60 feet …………………….. 85 Locomotive, using outriggers fully extended ……………. 80 Crawler, without outriggers ………………………………….. 75 Crawler, using outriggers fully extended ………………… 85 Truck and wheel mounted without outriggers or using outriggers fully extended …………. 85 (ii) The following stipulations shall govern the application of the values in paragraph(c)(1)(i) of this section for locomotive cranes:(a) Tipping with or without the use of outriggers occurs when half of the wheelsfarthest from the load leave the rail. (b) The crane shall be standing on track which is level within 1 percent grade. (c) Radius of the load is the horizontal distance from a projection of the axis ofrotation to the rail support surface, before loading, to the center of vertical hoist lineor tackle with load applied.(d) Tipping loads from which ratings are determined shall be applied under staticconditions only, i.e., without dynamic effect of hoisting, lowering, or swinging.(e) The weight of all auxiliary handling devices such as hoist blocks, hooks, andslings shall be considered a part of the load rating.(iii) Stipulations governing the application of the values in paragraph (c)(1)(i) of thissection for crawler, truck, and wheel- mounted cranes shall be in accordance with CraneLoad-Stability Test Code, Society of Automotive Engineers (SAE) J765.(iv) The effectiveness of these proceeding stability factors will be influenced by suchadditional factors as freely suspended loads, track, wind, or ground conditions, conditionand inflation of rubber tires, boom lengths, proper operating speeds for existingconditions, and, in general, careful and competent operation.\u00a0 All of these shall betaken into 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 applicable requirements fordesign, . . .testing, . . . and operation as prescribed in the ANSI B30.5-1968, SafetyCode for Crawler, Locomotive and Truck Cranes.\”\u00a0 However, section 1926.550(b)(2)applies only to employers in the construction industry, and not to crane manufacturersgenerally. See 29 C.F.R. ? 1910.12(a) (defining \”construction work\”). \u00a0Section 1910.180 is therefore the pertinent section in determining what legal requirementsconstrain crane manufacturers when they calculate load limits. [[6]] The PCSA standard is incorporated by reference as an OSHA standard at 29 C.F.R. ?1926.550(a)(17).[[7]] Towne argues that evidence as to the structural weakness of the boom shouldbe considered.\u00a0 The issue before us is not what caused an accident, but whether aviolation of an OSHA standard occurred.\u00a0 See, e.g., ConcreteConstruction 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., 77OSAHRC 188\/D13, 5 BNA OSHC 2014, 2016, 1977-78 CCH OSHD ? 22,266, p. 26,809 (No. 12879,1977).\u00a0 Inasmuch as evidence on the structural integrity of the boom is irrelevant tothe issues before us in this case, we do not consider it.[[8]] The parties dispute whether the 145-pound headache ball that was attacheddirectly over the hook should have been included in the load.\u00a0 Note 4 of themanufacturer’s specifications booklet states that \”[t]he weights of all load handlingdevices are considered part of the load lifted and suitable allowances for them should bemade.\”\u00a0 We find it unnecessary to resolve this dispute because we find that thecrane was overloaded even if the headache ball were excluded.[[9]] The load chart states that the crane has a 2200 pound capacity at 50 degreesand a 4000 capacity at 63 degrees.\u00a0 Inasmuch as a 13 degree difference in boom anglecorresponds to a 1800 pound difference in load capacity, one can say that for loadsbetween 2200 and 4000 pounds, there is a 138.46 pound increase in capacity per degree(1800\/13).\u00a0 Therefore, the capacity at 55 degrees is 692 pounds (5 x 138.46) greaterthan the capacity at 50 degrees, that is, 692 + 2200 = 2892 pounds.[[10]] That the two variables here follow a curved line is apparent from the loadlimit chart, for the ratio of the change in capacity to the change in corresponding boomangle varies between the entries in the chart.\u00a0 Also, when the entries in the chartare plotted as points on graph paper, the points form a curved line. \u00a0 Curved-lineinterpolation from such a graph shows that the capacity at 55 degrees is about 2600pounds.\u00a0 Our finding that the crane was overloaded does not depend on this figurebecause the Secretary has not sought to predicate a violation on figures derived fromcurved-line interpolation; we will instead continue to employ the figure derived fromstraight-line interpolation, which is more favorable to Towne.[[11]] Actually the crane was more overloaded than that.\u00a0 Some of the reasonsfor this are discussed below.”