The Towne Construction Company

Plain-English summary

Towne Construction used a truck crane to raise a reinforcing-steel mat when the boom collapsed, causing the mat to strike and kill an employee. The Commission held that the crane was overloaded under the manufacturer's load chart and that requiring compliance with the chart was valid as applied. Towne could have known of the overload because supervisors failed to tell the apprentice operator that added steel reduced the crane's capacity and did not reliably communicate the weights of the mat and spreader bar. The serious overload item was affirmed with a $240 penalty. The Commission vacated a separate item for not conspicuously posting the load chart because the operator had removed it only the day before and Towne's recent inspection had found it properly posted.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.550(a)(1); 29 C.F.R. § 1926.550(a)(2)
• Outcome: Serious crane-overload item affirmed with $240 penalty; load-chart posting item vacated.
• Key point: Reasonable diligence required accurate capacity information and load weights to reach the crane operator, but it did not make the employer responsible for an unforeseeable one-day removal of the posted chart.

Full text (OSHRC public release)

Docket No. 83-1262

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 Commission under 29
U.S.C. � 661(j), section 12(j) of the Occupational Safety and Health Act of 1970, 29
U.S.C. �� 651-678 ("the Act").  The Commission is an adjudicatory agency,
independent of the Department of Labor and the Occupational Safety and Health
Administration ("OSHA").  It was established to resolve disputes arising
out of enforcement actions brought by the Secretary of Labor under the Act and has no
regulatory functions.  See section 10(c) of the Act, 29 U.S.C. � 659(c).

Towne Construction Company is a Canton, Ohio, general construction
contractor.  In 1983 Towne held a subcontract to construct a water reservoir at
Timken Steel's new Faircrest Steel plant in Canton.  On September 27, 1983, it was in
the process of tying reinforcing steel ("rebars") into mats, which would be
installed in the walls of the reservoir before concrete was poured.  A 25-ton

Grove truck crane was used to lift the mat from its horizontal position to a nearly
vertical position, where it would be tied off and then put into the wall by a smaller
crane.  When one end of the mat was nearly vertical to the floor, the boom of the
crane collapsed, causing the steel mat to strike and kill one of Towne's employees who was
on the floor assisting in the positioning of the mat.

The Secretary of Labor issued citations to Towne alleging violations of two crane
safety standards.  Administrative Law Judge James D. Burroughs affirmed both
citations.  We affirm one citation and vacate the other.

Citation 1:  29 C.F.R. � 1926.550(a)(1), Exceeding Crane Manufacturer's Load
Limitations

In 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 load
limitations chart to lift a load of the weight involved here.  The standard provides:

� 1926.550 Cranes and derricks.

(a) General requirements .  (1) The employer shall comply with the
manufacturer's specifications and limitations applicable to the operation 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 the Secretary of the legislative authority that
Congress granted exclusively to the Secretary.[[1]]  Towne points out that the first
sentence of the standard requires an employer to comply with specifications and
limitations set by crane manufacturers, not by the Secretary.  Judge Burroughs
concluded that Towne had not proven that the standard contained 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 their
positions.  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, the Supreme Court found unconstitutional
delegations in statutes authorizing persons to develop regulations that their actual or
potential competitors would be required to comply with.  Here, however, the crane
manufacturer who developed the load chart was not an economic competitor of the crane
user.  The cases cited by the Secretary can also be distinguished; for example, many
do 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 more
illumination on the delegation question.  Given these other standards, as explained
more fully below, we conclude that the first sentence of section 1925.550(a)(1) can be
validly applied in many cases.  We also conclude that Towne has failed to carry its
burden 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 crane
manufacturers.  The standard unambiguously states that employers "shall comply
with the manufacturer's specifications and limitations applicable to the operation of. .
.all cranes. . . ." The Secretary argues, however, that there is no true delegation
in this case because OSHA regulations very closely prescribe the methods crane
manufacturers must use in determining crane load limits.  This argument is generally
sound.  Legally binding regulations can so closely circumscribe the discretion of a
crane manufacturer in calculating load limits that it would be the government rather than
the manufacturer that would be effectively prescribing the duty of a crane user.
 This system of regulation need not be perfect.[[3]]  Furthermore, some reliance
on manufacturers to calculate specifications for their products is unavoidable. Simply
stated, the federal government must rely on private organizations to establish such
specialized criteria as load charts because it would be neither practical nor efficient
for the government to set or approve load-limit capacity tables for every model of crane
in use.  This practical consideration deserves some weight.  See United
States 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 crane
manufacturers must follow in calculating load limits.[[5]]  In particular, section
1910.180(c)(1)(iii) requires the manufacturer to comply with SAE J765, Crane Load
Stability Test Code (1967) [hereinafter cited as "SAE"], a "Recommended
Practice" published by the Society of Automotive Engineers, Inc., reproduced as
Appendix F of PCSA Standard No. 2, Mobile Hydraulic Crane Standards (1968)
[hereinafter cited as "PCSA"], published by the Power Crane and Shovel
Association.  That code is very detailed in describing how a crane load's
limits are to be calculated.[[6]]  The manufacturer of a crane is therefore not left
to his own devices in calculating load limits, but is answerable to the Occupational
Safety and Health Administration through section 1910.180(c)(1)(i)-(iv) and SAE.  It
therefore seems that crane manufacturers are so closely governed by OSHA standards that
there is no delegation of authority.

Towne points out, however, that this crane was built in 1967, before the OSHA load
limit standards became legally binding on the crane manufacturer.  Towne would
apparently have us find that the load limit calculations reflected in the manufacturer's
specifications booklet were made when the crane was built.  There is, however, no
evidence to support that assumption; for one thing, the specifications booklet that Towne
introduced into evidence is not dated.  If anything, the booklet suggests that the
calculations were made after the crane was built.  The load limit chart compiled by
the Grove Manufacturing Company evidently reflects the substance of sections
1910.180(c)(1)(i)-(iv).  For one thing, it prescribes that load limits may not exceed
85% of the tipping load.  This is precisely the percentage required by the OSHA
standard at section 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 by the American National Standards
Institute.  See section 1910.189.  Yet, the predecessor of the 1968 ANSI
standard, section 1311(a) of ASA B30.2-1943 (reaff'd 1952), published by the American
Standards Association, prescribed only an 83% criterion.  For all this record shows,
then, the crane manufacturer performed its calculations and supplied the chart to Towne
after the crane was built and perhaps after the OSHA standard became binding on the
manufacturer.  Given this gap in the record, and the fact that the burden of proving
that 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 yet
effective, we still would not be convinced that the standard is invalid as applied.  
The validity of a delegation of legislative authority to a private party depends on its
reasonableness when considered in light of the purpose of the statute or regulation and
the facts of the case.  Male v. Ernest Renda Contracting Co ., 64 N.J.
199, 314 A.2d 361 (1974), cert. denied , 419 U.S. 839 (1974).  On the whole, it
would not offend reason or fairness to apply this load limit chart to Towne.  As we
note above, the load limit chart for this crane reflects precisely those load-testing
duties that the OSHA standard imposes.  Grove seems to have developed the chart
according to the same criteria that are in the OSHA standard.  To require that a
crane user in 1983 comply with a load limit chart based on those criteria is neither
prejudicial, unreasonable, nor unfair.  To refuse to require it would be empty
formalism.

We therefore conclude that Towne failed to meet its burden of proving that the
standard is invalid as applied.

Existence of Violative Condition

As we have said, citation 1 alleges that the angle of the crane's boom was
too shallow for the load.  Stated another way, the load was too great for the boom
angle.  Judge Burroughs found this allegation proven.  We agree.[[7]]

Whether the crane was overloaded depends on the load exerted on the boom and the load
capacity.  It is undisputed that the load exerted on the boom was at least 3,625
pounds.  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 the
spreader bar, which comes between the lifting hook and the mat to permit a stable
lift.[[8]]  The primary question therefore, what was the load capacity?

The crane manufacturer's specifications applicable to this lifting operation
appear in a chart entitled "JIB CAPACITIES."  Both parties accept Judge
Burroughs's finding that the jib of the boom was not offset; therefore, the capacity of
the boom is found under the column "No Offset."  The chart provides:

MIN. BOOM         NO

ANGLE

OFFSET

63 degrees              
4000 pounds

50 degrees              
2200 pounds

The boom here was at a 55� angle.  Neither the specifications nor the chart itself
state how to interpret the chart if the actual angle of the boom is not listed.  
Judge Burroughs interpolated between the 63 and 50 degree angles in the chart and
calculated that the maximum permissible load for a boom at 55 degrees is 2,892
pounds.[[9]]

Straight-line interpolation is a mathematical technique for computing how much a
change in one quantity will cause a change in a related quantity. It is often used
intuitively and is sometimes known as the "proportional parts" method.  It
assumes that the rate of change between two dependent variables is constant, that is, that
a graph illustrating the relationship between the variables is a straight line.  
Where, 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 correct
answer.[[10]]  Straight-line interpolation is also more practical to use by the
ordinary crane operator at a construction site than curved-line interpolation, which
requires one to plot points on graph paper and connect them with a french curve.  
Using straight-line interpolation here reveals that the crane was overloaded by at least
878 pounds, that is by about 30 percent of its capacity.[[11]]

Towne objects, however, to the use of interpolation.  Towne argues that because the
load chart does not tell an employer how to interpolate, the standard requiring use of the
load limitations is unconstitutionally vague as applied.  This argument represents
something of a shift in Towne's position.  Before the judge, it was the Secretary who
had argued briefly against interpolation, maintaining that if the actual boom angle fell
between two angles listed on the chart, the operator must stay within the load limit for
the lower angle.  Towne argued to the contrary, observing that "industry
practice. . .is to interpolate on the straight line basis," and that to require Towne
to have instead used the next lowest angle would raise constitutional vagueness problems.
 Judge Burroughs examined the arguments and stated that "[t]he view that the
chart can be interpolated to determine the lifting capacity, as advocated by Towne, is
affirmed."

We find no merit to Towne's current argument that it lacked fair notice of its
obligation because the load chart does not tell an employer how to interpolate.  
First, Towne's crane operator knew how to interpolate and actually used the
technique.  Mark Shumaker, the crane operator, testified that he used the technique
of straight-line interpolation to interpret the chart because he was told during a
four-year apprenticeship training program offered by the International Union of Operating
Engineers, Local 18, that it was a safe work practice.  Second, Judge Burroughs
credited the testimony of Towne's expert witness Robert Bobel, a structural engineer, that
straight-line interpolation is the practice followed by the construction industry in using
load limit charts.  As the Secretary now observes, "[i]t is obvious. . .that
everyone in the industry, and, in particular, this employer knew precisely what the [load
chart] called for."  Towne's fair notice argument must therefore be rejected.
  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 requirements
sufficient to reject vagueness argument).

We agree with Judge Burroughs that the load capacity of the crane was no more than
2892 pounds.  We find, moreover, that the load capacity of the crane was actually 490
pounds less than that, i.e., about 2400 pounds.  Charles Recard, a product safety and
reliability engineer for Grove Manufacturing Co., testified that two steel plates weighing
170 pounds together had been added to each side of the boom at the nose, and that two
steel plates weighing 320 pounds together had been added to the underside of the
jib.  Recard stated that the crane manufacturer had not made the additions, and that
the additional weight of the plates would reduce the load capacity.  Recard, an
expert witness, testified that a conservative allowance would be to deduct the 490 pounds
added by the steel plates from the load capacity .  Judge Burroughs held that
the steel plates were not required to be added to the load because the steel plates
were not "load handling devices" within the meaning of note 4 of the
manufacturer's specifications booklet. However, an OSHA standard requires that the load
capacity be reduced in this situation.  See section 1926.550(a)(16) (if modifications
made to crane, capacity charts shall be changed accordingly).  Following the
conservative approach employed by Mr. Recard, we find that the load capacity of this crane
was 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 it
did not tip over at the time of the accident.  Towne asserts that the manufacturer's
specifications regard tipping as the capacity limitation, relying on note 1 of the crane's
specifications booklet, which reads:

Rated lifting capacities are the maximum loads covered by the manufacturer's
warranty with the machine standing on a firm, level and uniform supporting surface.
Capacities do not exceed eighty-five 85% of tipping.  We agree with Judge Burroughs
that Towne's contention lacks merit.  The plain meaning of the second sentence at
note 1 of the specifications booklet is that rated lifting capacities are not more than
85% of the load that it would take to tip a crane.  This signifies that the tipping
point of the crane is not the limit on the rated load capacity; rather, the rated load
capacity would be no more than 85% of the tipping load.  See also ANSI
� 5-1.1.1-a.(margin of stability for load ratings is no more than 85 percent of
truck-crane tipping loads; PCSA �� 7.03(1) and 7.12.1.).  And as Judge Burroughs
noted, the rated load capacity could be even less than that.  That the crane did not
tip therefore does not mean that the load limit was not exceeded.

Knowledge

In order to prove a violation, the Secretary must establish that Towne knew or could have
known of the violative condition of the crane with the exercise of reasonable diligence.
  E.g ., Sasser Electric & Manufacturing Co ., 84 OSAHRC 37/C6, 11
BNA OSHC 2133, 2135, 1984-85 CCH OSHD � 26,982, p. 34,684 (No. 82-178, 1984), aff'd ,
No. 84-1961 (4th Cir. 1985).  We have found that Towne's crane was overloaded.
 There is no evidence that Towne actually knew of the overloaded condition.  The
issue here is therefore whether Towne could have known of it with reasonable
diligence.  Judge Burroughs found that Towne could have known of the crane's
overloaded condition had "[p]roper steps . . . been taken to insure an accurate
computation of the total weight . . . ." We agree that Towne should have known of the
overloaded condition of the crane.

We find that Towne critically failed to exercise reasonable diligence in two
ways.  First, though the crane operator was still an apprentice, Towne did not
supervise his calculation of load capacity or inform him of important information about
the crane's load capacity.  Second, though Towne certainly should have known the
weight of the load because it fabricated both the mat to be

lifted and the spreader bar, Towne did not clearly and unambiguously relay to the crane
operator the precise, critical information.

As we have noted, the weight of the steel plates that had been added to the boom
reduced the crane's load capacity by about 17 percent.  Yet, the crane operator
testified that he did not know that any metal had been added to the jib or the nose of the
boom. That Towne did not communicate the consequent reduction of load capacity to the
crane operator shows a lack of reasonable diligence.  It ensured that the operator's
load calculations would always be in error by about 17 percent.

We also find that Towne had no reliable means for unambiguously relaying critical
information about the load to the operator.  On this point, the role of two Towne
supervisors is important:  Mead Shumaker, Towne's vice-president, general
superintendent, and safety officer; and Fred Dycus, the ironworker foreman.  Both men
were at the jobsite when the overload occurred; the vice-president was in the company
trailer, while the ironworker foreman was in the hole guiding the mat while it was being
lifted. The vice-president testified that the replacing, repairing, and setting of the
reinforced steel mats was the "direct responsibility" of ironworker foreman Fred
Dycus.  However, Dycus denied at the hearing that he was the crane operator's
foreman, stating that the placing of the mat "was up to" the crane operator.
 Judge Burroughs recognized 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 taken to insure an
accurate computation of the total weight being lifted by the crane."

We agree with Judge Burroughs.  That Towne's highest supervisors on the site
lacked a clear idea of who was to oversee the work of an apprentice crane operator is
telling enough.  Moreover, though the vice-president and Dycus had particular
knowledge of the weights of some components of the load, they did not reliably communicate
that information to the crane operator.  We discuss here two instances of that.

The crane operator testified that he never knew that the spreader bar
weighed.  According to the vice-president, the ironworker foreman had designed the
spreader bar and had overseen its fabrication at the Timken site by Towne employees.
 The vice-president had arranged to have the weight of the spreader bar calculated
for Dycus by the structural manager.  The vice- president testified that the
structural manager had told him that the spreader bar weighed about 375 pounds, and it was
part of foreman Dycus' job to tell the crane operator what the spreader bar weighed.
 Yet, because he was not told of the bar's true weight, the crane operator was left
to make his "own visual estimate."  That the crane operator turned out to
have overestimated the bar's weight the bar's weight as 500 pounds is fortunate but
irrelevant.  The fact remains that the failure by Towne's supervisors to inform the
crane operator of the spreader bar's true weight demonstrated such casualness as to amount
to a lack of reasonable diligence.

Finally, Towne does not seem to have accurately assessed or communicated
information about the weight of the mat, despite the fact that the mat was fabricated by
Towne itself.  Ironworker foreman Dycus testified that he calculated the weight of
the steel mat as 6,300 pounds, and he told the crane operator that.  Dycus testified
also that he had overestimated the weight by what he thought was about 300 to 500 pounds
because he had rounded off some figures.  In other words, Dycus had calculated the
mat's weight to be 5,800 to 6,000 pounds but had added 300 to 500 to adjust for some
rounded numbers.  It was, however, stipulated at the hearing that the mat actually
weighed about 6,500 pounds (6,497.3 pounds, to be exact).  Therefore, Dycus had in
fact underestimated the weight of the mat by at least 200 pounds.  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 almost
500 pounds less than the mat's true weight.  Based on the record as a whole, we
conclude that Towne failed to convey vital information to the crane operator.  We
therefore find that Towne through its supervisors vice-president Shumaker and ironworker
foreman Dycus could have known of the overloaded condition of the crane had it been
reasonably diligent.  We thus affirm citation 1.

We also characterize the violation as serious under section 17(k) of the Act, 29
U.S.C. � 666(k), because, as demonstrated by a fatality that occurred when the boom
collapsed, there was a substantial probability that death or serious physical harm could
result from the excessive load on the boom.  In light of the criteria in section
17(j) of the Act, 29 U.S.C. � 666(j), particularly the gravity of the violation, we
affirm the 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, special hazard warnings, or
instruction, shall be conspicuously posted on all equipment.  Instructions or
warnings 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.  Instead, it was in the crane
operator's toolbox.  The crane operator had removed it from the door to the cab of
the crane the day before in order to read the chart during lunch and, rather than
replacing it, he put it in his toolbox.  The Secretary does not claim that Towne had
actual knowledge that the capacity chart was no longer posted.  Therefore, the only
issue on review is whether Towne could have known of that violative conduct with the
exercise of reasonable diligence.  Towne argues that the crane operator's removal of
the chart could not have been known with the exercise of reasonable diligence.  We
agree.

Towne had a plan of periodic inspections of the crane.  About 3 weeks before
the accident, Richard Mazeroski, an "oiler" employed by Towne, inspected the
crane and found that the load chart was posted on the inside of the door to the crane's
cab.  The crane operator stated that the chart was there when he took it to read the
day before the accident.  It was not established that any supervisory employee of
Towne would have had the opportunity to observe that the load chart was not posted inside
the 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 vacate
citation 2.

FOR THE COMMISSION

Ray H. Darling, Jr.

Executive Secretary

DATED:  DEC 4 1986

The Administrative Law Judge decision in this matter is unavailable in this format. To
obtain a copy of this document, please request one from our 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 Hours and
Safety Standards Act, 40 U.S.C. � 327 et seq . (commonly known as the
"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 without further rulemaking under section 6(a) of the
Occupational Safety and Health Act, 29 U.S.C. � 655(a). 36 Fed. Reg. 10466 (1971), promulgating
29 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); Sorrell
v. SEC , 679 F.2d 1323, 1325-26 & n.2 (9th Cir. 1982) (statute permitting private
body to adopt rules and discipline its members subject to review and approval or
disapproval by the Securities and Exchange Commission; no delegation to private party
because 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.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); and
New 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 to
delay action pending hearing).

[[3]] As Judge Burroughs observed:

[I]t is true that there is no absolute guarantee that any particular manufacturer
will develop load limitations in strict compliance with the criteria specified . . . .
[But] [t]here is no guarantee that any employer will follow any safety regulation
promulgated by the Secretary.  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 regulation
system is not ideal is not reason to reject that procedure entirely; "no system that
the FAA might follow would guarantee that airlines would always follow safe
procedures.").

[[4]] Those standards provide (footnote on chart deleted):

(c) Load ratings --(1) Load ratings--where stability governs lifting performance .
  (i) The margin of stability for determination of load ratings, with booms of
stipulated 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 of
tipping or balance with the boom in the least stable direction, relative to the mounting.
  The load ratings shall not exceed the following percentages for cranes, with the
indicated types of mounting under conditions stipulated in subdivisions (ii) and (iii) of
this 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 wheels
farthest 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 of
rotation to the rail support surface, before loading, to the center of vertical hoist line
or tackle with load applied.

( d) Tipping loads from which ratings are determined shall be applied under 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 cranes shall be in accordance with Crane
Load-Stability Test Code, Society of Automotive Engineers (SAE) J765.

(iv) The effectiveness of these proceeding stability factors will be influenced 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, in general, careful and competent operation.  All of these shall be
taken 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 for
design, . . .testing, . . . and operation as prescribed in the ANSI B30.5-1968, Safety
Code for Crawler, Locomotive and Truck Cranes."  However, section 1926.550(b)(2)
applies only to employers in the construction industry, and not to crane manufacturers
generally. See 29 C.F.R. � 1910.12(a) (defining "construction work").  
Section 1910.180 is therefore the pertinent section in determining what legal requirements
constrain 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 should
be considered.  The issue before us is not what caused an accident, 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 as evidence on the structural integrity of the boom is irrelevant to
the issues before us in this case, we do not consider it.

[[8]] The parties dispute whether the 145-pound headache ball that was attached
directly over the hook should have been included in the load.  Note 4 of the
manufacturer's specifications booklet states that "[t]he weights of all load handling
devices are considered part of the load lifted and suitable allowances for them should be
made."  We find it unnecessary to resolve this dispute because we find that the
crane was overloaded even if the headache ball were excluded.

[[9]] The load chart states that the crane has a 2200 pound capacity at 50 degrees
and a 4000 capacity at 63 degrees.  Inasmuch as a 13 degree difference in boom angle
corresponds to a 1800 pound difference in load capacity, one can say that for loads
between 2200 and 4000 pounds, there is 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 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 load
limit chart, for the ratio of the change in capacity to the change in corresponding boom
angle varies between the entries in the chart.  Also, when the entries in the chart
are plotted as points on graph paper, the points form a curved line.   Curved-line
interpolation from such a graph shows that the capacity at 55 degrees is about 2600
pounds.  Our finding that the crane was overloaded does not depend on this figure
because the Secretary has not sought to predicate a violation on figures derived from
curved-line interpolation; we will instead continue to employ the figure derived from
straight-line interpolation, which is more favorable to Towne.

[[11]] Actually the crane was more overloaded than that.  Some of the reasons
for this are discussed below.