[666 NE2d 1336, 644 NYS2d 463]

#### In the Matter of New York City Transit Authority, Respondent, v New York State Department of Labor et al., Appellants.

Argued February 8, 1996;

decided March 28, 1996

*226POINTS OF COUNSEL

*Dennis C. Vacco, Attorney-General,*New York City *(Pica Paul Ben-Amotz, Victoria A. Graffeo, Peter H. Schiff, Daniel F. De Vita*and *M. Patricia Smith*of counsel), for appellants.

I. The Public Employee Safety and Health Act (PESH Act) penalty guidelines do not constitute rules that must be promulgated pursuant to the State Administrative Procedure Act and the NY Constitution because they are not applied as fixed principles without regard to the facts and circumstances of each violation. *(Matter of Roman Catholic Diocese v New York State Dept. of Health,*66 NY2d 948; *Matter of Schwartfigure v Hartnett,*83 NY2d 296; *Matter of Duflo Spray-Chem. v Jorling,*153 AD2d 244; *Matter of Dry Harbor Nursing Home v Axelrod,*137 AD2d 962; *Matter of Trustees of Masonic Hall & Asylum Fund**227*v Axelrod,*174 AD2d 199; *Matter of Guptill Holding Corp. v Williams,*140 AD2d 12; *Matter of New York State Coalition of Public Empls. v New York State Dept. of Labor,*89 AD2d 283, 60 NY2d 789; *Louisiana Chem. Assn. v Bingham,*657 F2d 777; *Matter of Swalbach v State Liq. Auth.,*7 NY2d 518; *Matter of Amsterdam Nursing Home Corp. v Axelrod,*135 AD2d 331.) II. The Industrial Board of Appeals and Department of Labor reasonably determined that the mere presence of the hazardous chemicals list on the New York City Transit Authority’s computer system did not satisfy the PESH Act’s hazard communication standard. *(Kurcsics v Merchants Mut. Ins. Co.,*49 NY2d 451.)

*Mary McCorry,*Brooklyn, *Martin B. Schnabel*and *Ellen Deirdre Murphy*for respondent.

I. The Court below correctly held that the Department of Labor’s penalty imposition procedures are rules which are invalid unless duly promulgated and published. *(Matter of Jones v Smith,*64 NY2d 1003; *Matter of Schwartfigure v Hartnett,*83 NY2d 296; *Matter of Cordero v Corbisiero,*80 NY2d 771; *People v Cull,*10 NY2d 123; *Matter of Sheehan v Ambach,*136 AD2d 25, 72 NY2d 804; *New York State Coalition of Pub. Empls. v New York State Dept. of Labor,*89 AD2d 283, 60 NY2d 789; *State of New York v Town of Wallkill,*170 AD2d 8; *Matter of Callanan Indus. v White,*118 AD2d 167, 69 NY2d 601; *Matter of Roman Catholic Diocese v New York State Dept. of Health,*66 NY2d 948; *Duflo Spray-Chem. v Jorling,*153 AD2d 244.) II. This Court should affirm the Court below’s interpretation of access requirements of the Occupational Safety and Health Administration standard. *(Kurcsics v Merchants Mut. Ins. Co.,*49 NY2d 451; *Matter of Howard v Wyman,*28 NY2d 434; *New York State Coalition of Pub. Empls. v New York State Dept. of Labor,*89 AD2d 283, 60 NY2d 789; *Matter of Abraham & Straus v Tully,*47 NY2d 207; *Matter of Adamides v Chu,*134 AD2d 776, 71 NY2d 806; *New York State Assn. of Life Underwriters v New York State Banking Dept.,*83 NY2d 353; *Matter of Adams [Government Empls. Ins. Co.],*52 AD2d 118; *Doctor’s Council v New York City Employees’ Retirement Sys.,*71 NY2d 669; *Matter of Moran Towing & Transp. Co. v New York State Tax Commn.,*72 NY2d 166; *300 Gramatan Ave. Assocs. v State Div. of Human Rights.,*45 NY2d 176.)

*Paul A. Crotty, Corporation Counsel*of New York City *(Stephen J. McGrath*and *Ellen Ravitch*of counsel), for the City of New York, *amicus curiae.*

The Court below correctly held that *228the Department of Labor’s guidelines for imposing fines under the PESH Act were rules required to be promulgated and filed with the Secretary of State. Thus, the Court correctly concluded that, because the guidelines had not been promulgated and filed, fines imposed pursuant thereto were invalid and are unenforceable. *(Matter of Cordero v Corbisiero,*80 NY2d 771; *Matter of Schwartfigure v Hartnett,*83 NY2d 296; *Matter of Jones v Smith,*64 NY2d 1003; *People v Cull,*10 NY2d 123; *Matter of Guptill Holding Corp. v Williams,*140 AD2d 12, 73 NY2d 820; *Matter of Sheehan v Ambach,*136 AD2d 25, 72 NY2d 804; *Leichter v Barber,*120 AD2d 776; *Dairy Barn Stores v State Liq. Auth.,*67 AD2d 691, 47 NY2d 705; *Matter of Trustees of Masonic Hall & Asylum Fund v Axelrod,*174 AD2d 199.)

OPINION OF THE COURT

Levine, J.

During 1988, employees from respondent Department of Labor conducted health and safety inspections at five facilities in petitioner’s Surface Transit Division. The inspectors found various violations of the regulations under the Public Employee Safety and Health Act (Labor Law § 27-a [the PESH Act]) at each facility and issued a Notice of Violation and Order to Comply for each facility. At follow-up inspections, the inspectors found that some violations had not been corrected. Specifically, at five of its facilities, petitioner did not have available for inspection a list of hazardous chemicals to which employees might be exposed, as required by 29 CFR 1910.1200 (e) (1),* and, at one facility, petitioner did not implement a written Respiratory Protection Program, as required by 29 CFR 1910.134 (b) (1). The inspectors computed penalties for each facility pursuant to the penalty-assessment guidelines in the Department’s Field Operations Manual.

Petitioner challenged the citations with respect to all five facilities, and hearings were conducted before respondent Industrial Board of Appeals. In two separate orders, the Board upheld the penalties with respect to all five facilities, but reduced the amounts assessed because it disagreed with the inspectors’ application of the Department’s penalty guidelines.

Petitioner commenced this CPLR article 78 proceeding challenging the Board’s determinations and also asserting that the *229penalty guideline provisions were unenforceable because they were not filed and published as a rule or regulation as required by NY Constitution, article IV, § 8 and State Administrative Procedure Act § 102 (2) (b) (i). The Appellate Division granted the petition and annulled the orders. This Court granted the Department leave to appeal, and we now reverse.

As to the Department’s penalty guidelines, we disagree with the Appellate Division’s conclusion that the guidelines constitute a rule or regulation required by NY Constitution, article IV, § 8 and State Administrative Procedure Act § 102 (2) (b) (i) to be filed with the Secretary of State and published in the State Register. We have previously held that "only a fixed, general principle to be applied by an administrative agency without regard to other facts and circumstances relevant to the regulatory scheme of the statute it administers constitutes a rule or regulation required by NY Constitution, article IV, § 8” or State Administrative Procedure Act § 102 (2) (b) (i) to be filed in the office of the Department of State and published in the State Register *(Matter of Roman Catholic Diocese v New York State Dept. of Health,*66 NY2d 948, 951; *see also, Matter of Schwartfigure v Hartnett,*83 NY2d 296, 301; *Matter of Cordero v Corbisiero,*80 NY2d 771, 772-773). The penalty guidelines at issue vest inspectors with significant discretion, and allow for flexibility in the imposition of penalties, all with the view of imposing the appropriate sanction for the individual offense and offender in the particular case.

While the guidelines cap the maximum amount of daily penalties assessed for serious and nonserious violations, penalties "may be assessed” in any amount up to those statutory limits. In assessing penalties, inspectors are first directed to determine the gravity of the violation based on a weighing of three factors: (!) the probability of injury from the violation; (2) the severity of the injury or illness that could result from the violation; and (3) whether the violation is willful or repeated. Inspectors derive a numerical value for each factor on a scale of 1 to 10, and are directed to use their professional judgment to adjust the penalty scale based on consideration of mitigating and contributing factors. The values obtained for each of the three components are then averaged to obtain a "gravity based quotient”. Inspectors determine the per diem penalty by referring to a penalty table, and may reduce the penalty by up to 60% based on the size of the employer, the employer’s good faith and the employer’s history.

Thus, although the guidelines specify numerical formulas for calculating the ultimate amount of the penalty, they do not *230establish "a rigid, numerical policy invariably applied across-the-board to all claimants without regard to individualized circumstances or mitigating factors” *(Schwartfigure, supra,*at 301). Rather, "they encompass both fixed and variable factors unique to a facility to be considered * * * on a case-by-case analysis” *(Matter of Trustees of Masonic Hall & Asylum Fund v Axelrod,*174 AD2d 199, 204). The penalty guidelines do not dictate the result; the ultimate amount of the penalty is dependent on inspectors’ independent exercise of their professional judgment.

Furthermore, also contrary to the holding of the Appellate Division, *Matter of New York State Coalition of Pub. Empls. v New York State Dept. of Labor*(89 AD2d 283, *affd*60 NY2d 789) is not controlling. The fact that record-keeping requirements relating to matters of employee safety under the PESH Act were required to be promulgated as a rule or regulation in that case does not mandate that the penalty guidelines at issue here had to be incorporated in a rule or regulation. Labor Law § 27-a (6) authorizes the imposition of penalties for violations of the PESH Act or the safety and health standards promulgated thereunder. The statute does not mandate the promulgation of regulations regarding penalties to be imposed for a violation of the regulatory standards. Instead, the PESH Act leaves it to the Department to opt in favor of the imposition of penalties on a case-by-case basis, including " 'establishing a guideline for a case-by-case analysis of the facts’ ” *(Matter of Roman Catholic Diocese v New York State Dept. of Health,*109 AD2d 140, 148 [dissenting in part opn] [quoting *Long Is. Coll. Hosp. v Whalen,*68 AD2d 274, 276], *revd on dissenting opn below*66 NY2d 948, *supra).*

The Appellate Division alternatively held that the Board’s determination upholding the finding that petitioner violated 29 CFR 1910.1200 (e) (1) was unsupported by substantial evidence. We disagree. Employers are required to "develop, implement, and maintain at each workplace, a written hazard communication program * * * which also includes * * * [a] list of the hazardous chemicals known to be present” (29 CFR 1910.1200 [e] [1] [i]). While conceding that they did not have a *written*list of hazardous chemicals available at the five facilities at issue, petitioner argued and the Appellate Division agreed that the regulation was complied with because petitioner had developed an authoritywide computerized chemical inventory system which was in operation at all of the cited facilities long before the Department’s compliance inspections.

*231The Department and Board construed 29 CFR 1910.1200 (e) (1) as requiring that chemical inventories be made available and readily accessible to employees to inform them of the hazards inherent in the day-to-day handling of these materials. This construction, pertaining to a matter within the area of expertise of the Department and the Board, appears reasonable *(see, Kurcsics v Merchants Mut. Ins. Co.,*49 NY2d 451, 459). Moreover, the Board’s conclusion that petitioner’s computer-stored inventory did not satisfy the regulatory standard is supported by substantial evidence. The record indicates that at one facility, the inspector was told no chemical inventory had been compiled; at another facility, the inspector was not told of any chemical inventory, even in an alternative form; no chemical inventory existed at a third facility; and no written hazard communication programs had been developed or implemented at the remaining two facilities. Thus, employees clearly lacked the access to the inventories that was required by the regulation.

Finally, petitioner’s failure to keep a written Respiratory Protection Program at one of its facilities pursuant to 29 CFR 1910.134 (b) (1) was noted in the inspector’s report, and petitioner’s citation for that violation is supported by substantial evidence.

Accordingly, the judgment of the Appellate Division should be reversed, with costs, and the article 78 petition dismissed.

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith and Ciparick concur.

Judgment reversed, etc.

*

 As authorized by Labor Law § 27-a (4), the Department of Labor has adopted Federal safety and health standards and regulations promulgated pursuant to the Federal Occupational Safety and Health Act (see, 12 NYCRR 800.3).