WISHA Interim Operations Memorandum #96-9-G

WISHA Interim Interpretive Memorandum
#96-9-G
"Incidental" Use in Relation to ROPS in Agriculture

Approved:
Michael Wood, Senior Program Manager
Policy & Technical Services

Date Issued:
September 27, 1996

Background

WAC 296-306-200(2) and WAC 296-306-200(3) contain specific requirements related to rollover protective structures in agriculture. WAC 296-306-200(6) contains exemptions to those requirements. Questions have arisen in relation to the use of the word "incidental" as part of two of those exemptions.

WAC 296-306-200(6)(a) exempts "low profile" tractors "while they are used in orchards, vineyards or hop yards where the vertical clearance requirements would substantially interfere with normal operations, and while their use is incidental to the work performed therein." (emphasis added). WAC 296-306-200(6)(b) includes a similar exemption for use inside farm buildings or greenhouses.

"Incidental," according to Webster's II New Riverside University Dictionary, means either "occurring to or apt to occur as an unpredictable concomitant" or "of a minor, casual, or subordinate nature." Given that the use must be incidental "to the work performed therein," either definition seems workable, provided the use in question is somehow related to exempted use. In order to be exempt, work must be associated with (concomitant to or subordinate to) the work referenced in the exemption. Put more clearly, it must arise out of the exempted work. This remains true regardless of the frequency of the use in question.

This interim memorandum, which will remain in effect until a formal directive on the subject can be issued, provides guidance to WISHA consultation and compliance staff when they must address the question of whether work otherwise covered by the requirements of WAC 296-306-200 is in fact exempt as "incidental" use of the tractor.

Policy:

In the application of WAC 296-306-200(6)(a) and WAC 296-306-200(6)(b), WISHA consultation and compliance staff may apply the exemption only if the work in question arises out of the listed exemptions and cannot legitimately be described as a "stand-alone" use separate from the exempted use.

For example, if a farmer uses a tractor in a greenhouse, but must occasionally leave the greenhouse to pull a load of manure into the greenhouse for use as fertilizer, such use outside the greenhouse can legitimately be considered "incidental to" the work in the greenhouse. However, if he or she were to take the same tractor with a mower behind it once a year to clear the pasture, such use of the tractor (although infrequent) is not incidental to any exempted activity Such use would be treated the same way as a farmer who bought the tractor to use it once a year mowing his or her fields (i.e., the exemption would not apply).