“SECRETARY OF LABOR,Complainant,v.P. R. Drydock & Marine Terminals, Inc.,Respondent.OSHRC Docket No. 90-0194_ORDER_This matter is before the Commission on a Direction for Review enteredby Commissioner Donald G. Wiseman on June 4, 1990. The parties have nowfiled a Stipulation and Settlement Agreement.Having reviewed the record, and based upon the representations appearingin the Stipulation and Settlement Agreement, we conclude that this caseraises no matters warranting further review by the Commission. The termsof the Stipulation and Settlement Agreement do not appear to be contraryto the Occupational Safety and Health Act and are in compliance with theCommission’s Rules of Procedure.Accordingly, we incorporate the terms of the Stipulation and SettlementAgreement into this order. This is the final order of the Commission inthis case. See 29 U.S.C. ? 659(c), 660(a) and (b).Edwin G. Foulke, Jr.ChairmanVelma MontoyaCommissionerDonald G. WisemanCommissionerDated: November 28, 1990————————————————————————ELIZABETH DOLE, SECRETARY OF LABOR,Complainant,v.P.R. DRYDOCK & MARINETERMINALS, INC.,Respondent.OSHRC Docket No. 90-0194*STIPULATION AND SETTLEMENT AGREEMENT*In full settlement and disposition of the instant matter, it is herebystipulated and agreed by and between Complainant, the Secretary ofLabor, and respondent, P.R. Drydock & Marine Terminals, Inc., as follows:1. On March 23, 1989, respondent was issued three citations with a totalproposed penalty of $4,800. Company officials first became aware thatcitations had been issued by virtue of a May 31, 1989 collection letter.On October 19, 1989, respondent submitted a written notice of contest.On April 12, 1990 Commission Judge Paul Tenney issued an Order grantingthe Secretary’s Motion to Dismiss on grounds of untimely filing.2. The Secretary hereby amends the penalties proposed in connection withCitation No. 1 for serious violations and Citation No. 2 for repeatedviolation as follows:Originally proposed \tAmendedCitation No. 1 $3,680 \t$1,840Citation No. 2 1,120 \t560$4,800 \t$2,400No penalties were and are proposed in connection with citation No. 3 forother than serious violations.3. Respondent hereby withdraws its notice of contest to the citations,and to the proposed penalties as amended above.4. Respondent states that it has abated each of the cited violations.5. Respondent hereby consents in advance to any inspection undertaken bythe Occupational Safety and Health Administration (OSHA) for thespecific purpose of assuring that abatement of the cited violations hasbeen completed.6. Respondent agrees that within 120 days from the date of thisAgreement it will evaluate its facilities, practices and operations forcompliance with the Occupational Safety and Health Act and with thestandards and regulations promulgated thereunder.7. Respondent agrees to submit to the San Juan OSHA Area Office $2,400in full and complete payment of the penalty within 30 days of the dateof this Agreement.8. Complainant and respondent will bear their own litigation costs andexpenses.9. Respondent certifies that a copy of this Stipulation and SettlementAgreement was posted at the workplace on the _1s_t day of _November,_1990, in accordance with Rules 7 and 100 of the Commission’s Rules ofProcedure. In addition, a copy of this Stipulation and SettlementAgreement was served, by postage prepaid first class mail, on Mr.Guillermo Ortiz, President, International Longshoremen’s AssociationLocal 1575, P.O. Box 5042, Puerto de Tierra Station, San Juan, PuertoRico 00906 on the _1st_ day of _November,_ 1990.Dated this _1st_ day of _November,_ 1990.P.R. Drydock & Marine Terminals, Inc.Robert P. DavisSolicitor of LaborCynthia L. AttwoodAssociate Solicitor forOccupational Safety and HealthBertil AndersonSuperintendentDaniel J. MickCounsel for RegionalTrial Litigation————————————————————————SECRETARY OF LABORComplainantv.P.R. DRYDOCK & MARINE TERMINALS, INC.RespondentDocket No. 90-0194_ORDER_1. The Secretary of Labor has filed a Motion to Dismiss Respondent’snotice of contest as untimely filed and to affirm the Secretary ofLabor’s citations and proposed penalties in this case. By order, theparties were advised that the motion would be determined without oralhearing and the parties were afforded an opportunity to file briefwritten statements of reasons in support or in opposition to the motion.2. Three citations with total proposed penalties of $4800 were issued tothe Respondent employer on March 23, 1989. The citations andnotification of proposed penalties were sent to the Respondent employerby certified mail, return receipt requested. The returned certified mailreceipt shows that the citations and notification of proposed penaltieswere addressed Mr. Ramon MacCrohon, President, P.R. Drydock & Marine,Inc. and its successors. The receipt bears the signature or mark of anagent to whom delivery was made on March 30, 1989.3. Under section 10(a) of the Occupational Safety and Health Act, thecontesting employer was allowed fifteen (15) working days after thisreceipt in which to file an intention to contest the Secretary ofLabor’s action. The fifteen (15) working-day period expired on April 20,1989.4. A debt collection letter was sent to the Respondent employer bycertified mail, return receipt requested, on May 31, 1989. According tothe postal receipt, the letter was received on June 5, 1989. Acomparison of this receipt and that for the citations and notificationof proposed penalty suggests that the signature or mark of theemployer’s agent on both specimens is the same person.5. By a letter dated October 19, 1989, the Respondent employer mailed acontest letter to the OSHA delinquent accounts director. The letterrepresented that the citations initially mailed were never received andthat some time was expended in searching for the mail documents. It wasfurther represented that the employer did not obtain copies of thecitations until October 11, 1989, when they were procured from the localOSHA office. This position is essentially repeated in the employer’sApril 5, 1990, statement filed in response to my March 30, 1990, order.There is no explanation as to why the same agent for the employer signedfor both the debt collection letter and the citations, but only the debtcollection letter was accounted for.6. The Secretary of Labor correctly contends that the service of thecitation by certified mail to the Respondent employer at its properaddress was reasonably calculated to provide the employer with knowledgeof the citation and notification of the proposed penalty. _B.J. Hughes.Inc.,_ 7 BNA OSHC 1471, 1474 (Rev. Com. 1979). Moreover, consistent withthe concurring opinion in _B.J. Hughes_ the return receipt of themailing of the citation constitutes a_prima facie_ showing that theemployer has received the citations and notification of proposed penaltyand it was properly served. The contesting employer has not rebuttedthis showing; there is no affidavit or other evidence that adequatelysupports the assertion of the employer that delivery was not achieved.Moreover, due process only requires an agency employ a procedurereasonably calculated to achieve notice; successful achievement is notnecessary to satisfy a due process requirement. _Katzer Brothers, Inc_.v. _EPA, _66 Ad. L.2d 654, 839 F.2d 1396 (10th Cir. 1988).7. The lack of any persuasive evidence concerning the alleged loss ofthe mailed citations and notification of proposed penalties alsosupports a conclusion that the Respondent employer has shown noexcusable neglect permitting relief under Rule 60(b)(1) of the FederalRules of Civil Procedure as applied by Commission Rule 2(b)._Branciforte Builders, Inc.,_ 9 BNA OSHC 2113 (Rev. Com. 1983).8. For the foregoing reasons the Secretary of Labor’s motion to Dismissis hereby granted.PAUL A. TENNEYJudge, OSHRCDATED: MAY 02 1990Washington, D.C.”