April 19, 1991

Mr. Thomas G. Jeter
Sherman & Howard
Suite 500, Alamo Corporate Center
102 South Tejon
Colorado Springs, Colorado 80903

Dear Mr. Jeter:

Thank you for your letter of March 25, concerning the Occupational Safety and Health Administration (OSHA) standard at 29 CFR 1926.1000(a), Rollover protective structures (ROPS) for material handling equipment.

In your letter you specifically request that the following questions be addressed:

1. Does 29 CFR 1926.1000(a) specifically require the installation of ROPS on trenchers such as the Vermeer T-600D?

2. Are trenchers such as the Vermeer T-600D considered to be "crawler tractors?" If so, does the regulation require installation of ROPS on all crawler tractors?

3. Why are side boom pipelaying tractors exempt?

4. Has OSHA published policy guidance on waiver of these requirements in appropriate circumstances?

5. Is the advice summarized above (in the contents of your letter) by OSHA personnel generally correct?

Rollover protective structures (ROPS) are required upon all equipment described by the standard at 29 CFR 1926.1000(a)(1) and which are used in the construction industry.

In response to your questions we provide the following:

1. Trenchers such as the Vermeer T-600D and T-650, which are depicted with your letter, are required to be equipped with ROPS when used during construction operations.

2. The trenchers depicted by your enclosures appear to be mounted upon crawler tractor type equipment and are certainly expected to traverse terrain in an identical manner, therefore, OSHA classifies your equipment as a crawler tractor. All crawler tractors used at construction sites are required to be equipped with ROPS, unless the circumstances are determined to provide for a "de minimis violation".

3. Side boom pipelaying tractors were exempted during the rule making which took place during 1971 and early 1972. As the result of guidance and recommendations from the Advisory Committee on Construction Safety and Health the rule making which culminated with the publishing of the standard in the Federal Register on April 5, 1972, (copy enclosed) exempted side boom pipelaying tractors. No subsequent actions have been taken to modify this provision.

4. At worksites where the hazard of rollover is present (eg. in mountainous areas or along steep grades) the requirement for ROPS is unyielding. However, when material handling equipment such as the Vermeer T-600D is to be used on level terrain and the potential for rollover is remote, OSHA may determine that the violation of the standard is "de minimis" because employees are not subjected to a workplace hazard. OSHA policy concerning "de minimis violations" of OSHA standards are set forth in the OSHA Field Operations Manual (FOM), Chapter IV.B.6, copy enclosed. De minimis violations do not result in citations and do not require abatement.

The Occupational Safety and Health Act provides employers a right to request a variance from the specific requirements of a standard. Such variance requests are only available to employers who require use of the equipment by their employees and should be directed to the Office of Variance Determination. Variances are only granted when the employer has implemented alternative safeguarding to provide equal or better protection for the employees as that required by the standard.

5. The advice summarized by you is primarily incorrect, however, when the specific location or manner of use constitutes a rollover hazard, the authority having jurisdiction would require that ROPS be installed.

If we may be of further assistance, please contact us.

Sincerely,



Gerard F. Scannell
Assistant Secretary

Enclosures

M/R: The Docket files were reviewed to obtain an answer to question #3. The file did not reveal precisely from whence the exclusion came. The office of safety std's subsequently provided guidance. A marked-up draft by Ike Martin to Tom Korson (SOL) included the final language of the standard. It appears that Martin's draft was coordinated thru Korson to the Advisory Committee.



March 25, 1991

Thomas G. Jeter

FEDERAL EXPRESS

Hon. Gerard F. Scannell
Assistant Secretary for OSHA
200 Constitution Avenue, N.W.
Washington, D.C. 20210

Re: Interpretation of 29 CFR 1926.1000(a), OSHA Requirements for Rollover Protective Structures (ROPS)

Dear Mr. Scannell:

We urgently request an opinion regarding the applicability of the above-cited regulation to "trenchers" such as the T-600D trencher manufactured by Vermeer Manufacturing Company, Pella, Iowa (which is pictured on the attached exhibit). We represent a number of construction contractors, including one which is now in disagreement with the Army regarding whether the cited regulation requires installation of a ROPS on such a trencher, and it is imperative that we receive an official interpretation of that rather ambiguous provision.

The provision in question states:

"(a) Coverage. (1) This section applies to the following types of material handling equipment: To all rubber-tired, self- propelled scrapers, rubber-tired front-end loaders, rubber-tired dozers, wheel-type agricultural and industrial tractors, crawler tractors, crawler-type loaders, and motor graders, with or without attachments, that are used in construction work. This requirement does not apply to side boom pipelaying tractors."

We have been advised by some OSHA personnel that the above provision does not specifically require ROPS on trenchers such as the T-600D; and that such trenchers are not considered to be "crawler tractors". Further the attached 1985 correspondence from Vermeer indicates that OSHA also advised them that the cited regulation was not intended to apply to the T-600 type trencher. However, the OSHA personnel we contacted did indicate that other safety regulations generally give the Government agencies the authority to require installation of ROPS if the operating conditions in a specific location constitute a rollover hazard.

Therefore, we specifically request responses to the following questions:

1. Does 29 CFR 1926.1000(a) specifically require the installation of ROPS on trenchers such as the Vermeer T-600D?

2. Are trenchers such as the Vermeer T-600D considered to be "crawler tractors"? If so, does the regulation require installation of ROPS on all crawler tractors?

3. Why are side boom pipelaying tractors exempt?

4. Has OSHA published policy guidance on waiver of these requirements in appropriate circumstances?

5. Is the advice summarized above by OSHA personnel generally correct?

We respectfully request expedited processing of this request for opinion, so that we might settle an on-going disagreement and provide accurate advice and guidance to other current clients. For this purpose, we request a preliminary reply be transmitted via FAX to (719) 635-4576, followed by original to our address above.

Thank you in advance for your prompt reply.

Yours very truly,



Encls (3)



March 22, 1985



Ms. Christine Stewart/PMWVB
Department of the Air Force
Directorate of Contracting & Manufacturing
Warner Robins Air Logistics Center/PM
Robins AFB, GA 31098

Dear Ms. Stewart:

I have received your letter dated march 18 which included Amendment #0001.

Enclosed you will find the following:

1. Pages 2, 3 and 4 are repriced to include the cooling system protection to -65?F and operator cab with heater.

2. Item A under K-37, as found on page 22, is being sent back with the comment that our offering is not affected by a balance of payments program.

3. I am also returning the Annual Representations, Certifications and Acknowledgments form. I have previously mailed this completed form to your office on October 31, 1984.

Please be advised that the cab that is being furnished does not comply with your article numbered 3.17. The cab does not have rollover protection nor does it have a position allowing the operator unrestricted view of the ditching area from either side of the boom. It is impossible to afford unrestricted view on both sides of the machine and track-type ditching machines are not at all referred to in the Federal Register, page 22880, Article 1926.1000. This section deals with rubber-tired vehicles and industrial tractors or crawler tractors. Our interpretation is based on the following data:

1. In 20 years of building a track-type ditcher, we have had no accident experience in this class of a ditcher upsetting.

2. Normally speaking, the usage of a ditcher is on relatively level ground as opposed to job sites that crawler tractors could be found on.

3. When the ditcher is in the operative mode, the boom itself would go into the ground, this providing additional stability.

4. A ladder-type ditching machine provides a very low center of gravity and with the wide track base the Vermeer T-600D has unusual stability.

5. Our product safety manager has indicated to me that OSHA has advised that Article 1926.1000 is not intended to apply to the T-600-type trencher.

Thank you. Sincerely yours,



George A. Wassenaar, Manager
Dealer Development
Industrial Fleet Accounts