“Docket No. 90-0194 SECRETARY OF LABOR,Complainant,v.P. R. Drydock & Marine Terminals, Inc.,Respondent.OSHRC Docket No. 90-0194ORDERThis matter is before the Commission on a Direction for Reviewentered by Commissioner Donald G. Wiseman on June 4, 1990. The parties have now filed aStipulation and Settlement Agreement.Having reviewed the record, and based upon the representationsappearing in the Stipulation and Settlement Agreement, we conclude that this case raisesno matters warranting further review by the Commission. The terms of the Stipulation andSettlement Agreement do not appear to be contrary to the Occupational Safety and HealthAct and are in compliance with the Commission’s Rules of Procedure.Accordingly, we incorporate the terms of the Stipulation and Settlement Agreement intothis order. This is the final order of the Commission in this case. See 29 U.S.C. ?659(c), 660(a) and (b).Edwin G. Foulke, Jr.ChairmanVelma MontoyaCommissionerDonald G. WisemanCommissionerDated: November 28, 1990ELIZABETH DOLE, SECRETARY OF LABOR,Complainant,v.P.R. DRYDOCK & MARINETERMINALS, INC.,Respondent.OSHRC Docket No. 90-0194STIPULATION AND SETTLEMENT AGREEMENTIn full settlement and disposition of the instant matter, it ishereby stipulated and agreed by and between Complainant, the Secretary of Labor, andrespondent, P.R. Drydock & Marine Terminals, Inc., as follows:1. On March 23, 1989, respondent was issued three citationswith a total proposed 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 JudgePaul Tenney issued an Order granting the Secretary’s Motion to Dismiss on grounds ofuntimely filing.2. The Secretary hereby amends the penalties proposed inconnection with Citation No. 1 for serious violations and Citation No. 2 for repeatedviolation as follows: Originally proposed Amended Citation No. 1 $3,680 $1,840 Citation No. 2 1,120 560 $4,800 $2,400 No penalties were and are proposed in connection with citationNo. 3 for other than serious violations.3. Respondent hereby withdraws its notice of contest to thecitations, and to the proposed penalties as amended above. 4. Respondent states that it has abated each of the citedviolations.5. Respondent hereby consents in advance to any inspectionundertaken by the Occupational Safety and Health Administration (OSHA) for the specificpurpose of assuring that abatement of the cited violations has been completed.6. Respondent agrees that within 120 days from the date of thisAgreement it will evaluate its facilities, practices and operations for compliance withthe Occupational Safety and Health Act and with the standards and regulations promulgatedthereunder.7. Respondent agrees to submit to the San Juan OSHA Area Office$2,400 in full and complete payment of the penalty within 30 days of the date of thisAgreement.8. Complainant and respondent will bear their own litigationcosts and expenses.9. Respondent certifies that a copy of this Stipulation andSettlement Agreement was posted at the workplace on the 1st day of November,1990, in accordance with Rules 7 and 100 of the Commission’s Rules of Procedure. Inaddition, a copy of this Stipulation and Settlement Agreement was served, by postageprepaid first class mail, on Mr. Guillermo Ortiz, President, International Longshoremen’sAssociation Local 1575, P.O. Box 5042, Puerto de Tierra Station, San Juan, Puerto Rico00906 on the 1st day of November, 1990.Dated this 1st day of November, 1990. P.R. Drydock & Marine\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Terminals, Inc.Robert P. Davis Solicitor of LaborCynthia L. AttwoodAssociate Solicitor forOccupational Safety and HealthBertil Anderson SuperintendentDaniel J. Mick Counsel for RegionalTrial LitigationSECRETARY OF LABORComplainantv.P.R. DRYDOCK & MARINE TERMINALS, INC.RespondentDocket No. 90-0194ORDER1. The Secretary of Labor has filed a Motion to Dismiss Respondent’s notice of contest asuntimely filed and to affirm the Secretary of Labor’s citations and proposed penalties inthis case. By order, the parties were advised that the motion would be determined withoutoral hearing and the parties were afforded an opportunity to file brief written statementsof reasons in support or in opposition to the motion.2. Three citations with total proposed penalties of $4800 wereissued to the Respondent employer on March 23, 1989. The citations and notification ofproposed penalties were sent to the Respondent employer by certified mail, return receiptrequested. The returned certified mail receipt shows that the citations and notificationof proposed penalties were addressed Mr. Ramon MacCrohon, President, P.R. Drydock &Marine, Inc. and its successors. The receipt bears the signature or mark of an agent towhom delivery was made on March 30, 1989.3. Under section 10(a) of the Occupational Safety and Health Act, the contesting employerwas allowed fifteen (15) working days after this receipt in which to file an intention tocontest the Secretary of Labor’s action. The fifteen (15) working-day period expired onApril 20, 1989.4. A debt collection letter was sent to the Respondent employerby certified mail, return receipt requested, on May 31, 1989. According to the postalreceipt, the letter was received on June 5, 1989. A comparison of this receipt and thatfor the citations and notification of proposed penalty suggests that the signature or markof the employer’s agent on both specimens is the same person.5. By a letter dated October 19, 1989, the Respondent employermailed a contest letter to the OSHA delinquent accounts director. The letter representedthat the citations initially mailed were never received and that some time was expended insearching for the mail documents. It was further represented that the employer did notobtain copies of the citations until October 11, 1989, when they were procured from thelocal OSHA office. This position is essentially repeated in the employer’s April 5, 1990,statement filed in response to my March 30, 1990, order. There is no explanation as to whythe same agent for the employer signed for both the debt collection letter and thecitations, but only the debt collection letter was accounted for.6. The Secretary of Labor correctly contends that the service of the citation by certifiedmail to the Respondent employer at its proper address was reasonably calculated to providethe employer with knowledge of the citation and notification of the proposed penalty. B.J.Hughes. Inc., 7 BNA OSHC 1471, 1474 (Rev. Com. 1979). Moreover, consistent with theconcurring opinion in B.J. Hughes the return receipt of the mailing of the citationconstitutes a prima facie showing that the employer has received the citations andnotification of proposed penalty and it was properly served. The contesting employer hasnot rebutted this showing; there is no affidavit or other evidence that adequatelysupports the assertion of the employer that delivery was not achieved. Moreover, dueprocess only requires an agency employ a procedure reasonably calculated to achievenotice; successful achievement is not necessary to satisfy a due process requirement. KatzerBrothers, Inc. v. EPA, 66 Ad. L.2d 654, 839 F.2d 1396 (10th Cir. 1988).7. The lack of any persuasive evidence concerning the allegedloss of the mailed citations and notification of proposed penalties also supports aconclusion that the Respondent employer has shown no excusable neglect permitting reliefunder Rule 60(b)(1) of the Federal Rules of Civil Procedure as applied by Commission Rule2(b). Branciforte Builders, Inc., 9 BNA OSHC 2113 (Rev. Com. 1983).8. For the foregoing reasons the Secretary of Labor’s motion to Dismiss is hereby granted.PAUL A. TENNEYJudge, OSHRCDATED: MAY 02 1990Washington, D.C.”