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Ds are farmers each of whom employs seasonal workers and each of whom provides housing that is made available to the seasonal workers on a voluntary basis at little or no cost. The workers are not required to live in the housing. Their housing is not essential to support such a labor pool. During the periods in question, there has been a more than ample labor supply. The housing is not filled to capacity even during the peak of the harvest season. Some workers choose not to live in the housing. When work is available, the housed workers are required to work on the farm which provides the housing. At other times they may continue to use the housing while working for other employers. OSHA decided it had the authority under section 6(a) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 655(a) (the Act), to create standards or temporary labor camps. P published a proposed new standard covering housing. The proposed rule stated that the Act applies 'to housing furnished by employers to employees, to the extent that such housing constitutes a condition of employment.' After hearings, P withdrew the proposed new standard stating that 'until such time as a single Departmental standard on employment-related housing is promulgated, OSHA will continue to inspect temporary labor camps and enforce its existing standard. Ten days later D issued Field Information Memorandum No. 76-17 entitled 'Clarification of Procedures for Inspection of Migrant Housing Facilities.' This memorandum instructed field inspectors to apply a condition of employment test. OSHA then issued Instruction CPL 2.37 which rejected the 'condition of employment' test in favor of a 'directly related to employment' standard: housing was deemed covered by the Act so long as it was in fact directly related to employment. Ds agree that although the temporary workers' occupancy of the provided housing is not a 'condition of employment,' it is 'directly related to employment.' The administrative law judge determined that the latter was the correct test and accordingly held that the temporary housing was a 'workplace' within the meaning of the Act, and subject to the requirements of 29 C.F.R. §§ 1910.142f and 1903(1), for the violation of which Ds were cited. Ds appealed.

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