are both premature and remote; accordingly, CARECO's concerns in this regard do not constitute an adequate basis for granting review.8

For all the foregoing reasons, CARECO's petition for review is denied.

So ordered.

8 By analogy, courts traditionally have been reluctant to review matters unless they arise in the context of a case or controversy which is ripe for judicial resolution. As the Supreme Court stated in Abbott Laboratories v. Gardner, 387 U.S. 136, 148 (1967):

Without undertaking to survey the intricacies of the ripeness doc-
trine (fn. omitted) it is fair to say that its basic rationale is
to prevent the courts, through avoidance of premature adjudica-
tion, from entangling themselves in abstract disagreements

IN THE MATTER OF KATZSON BROTHERS, INC.

FIFRA Appeal No. 85-2

FINAL DECISION

Decided November 13, 1985

Before the Administrator, U.S. Environmental Protection Agency

Opinion by Ronald L. McCallum, Chief Judicial Officer:

Katzson Brothers, Inc. (Katzson) appeals from the Default Order entered by the Regional Administrator pursuant to 40 CFR § 22.17(a), (after motion, upon failure to file a timely answer to the complaint), imposing a penalty of $4,200. The Default Order held that Katzson had failed to file its 1983 Pesticide Report as required by the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) § 7(c)(1), 7 U.S.C. § 136(e)(c)(1), and implemented through 40 CFR § 167.5(c).1

The Default Order was filed and copies served on the parties on July 2, 1985. Katzson's copy, sent by certified mail with return receipt requested, was accepted by Mr. Seymour Katzson on that date. On July 3, 1985, Katzson filed a self-styled Motion to Vacate Default Order, followed by a Supplemental Motion to Vacate on July 17, 1985. The motions were denied by the Regional Administrator on August 9, 1985. For purposes of meeting the 20-day time period for appealing the Default Order, specified under 40 CFR § 22.30, I will consider the motions to vacate as motions to reopen a hearing which would have stayed the appeal period. 40 CFR § 22.28. Katzson's notice of appeal, filed August 27, 1985, is therefore timely.

Katzson raises the following issues on appeal: whether the Regional Administrator abused his discretion in refusing to set aside the Default Order upon Katzson's showing of good cause pursuant

1The Chief Judicial Officer, as the Administrator's delegatee, has the authority to decide this appeal under 40 CFR Part 22 (1984).

to 40 CFR § 22.17(d); whether Katzson had proper notice of the complaint; whether the fine was properly assessed; and whether the Default Order properly found that Katzson had notice of complainant's proposed order for default. For the following reasons, I affirm the Default Order.

I

Katzson Brothers, Inc. produces a pesticide known as Kaybro Algaecide. On February 19, 1985, the United States Environmental Protection Agency (EPA) filed a complaint against Katzson alleging a failure to file its 1983 Pesticide Report pursuant to FIFRA and 40 CFR § 167.5(c). A copy of the complaint, along with the Consolidated Rules of Practice,2 notice of opportunity for a hearing and notice of opportunity for a settlement conference were sent by certified mail with return receipt requested to Seymour M. Katzson, owner and president of the corporation.3 The receipt was signed and returned by Mr. Katzson's secretary, Ms. J. Rudisill. Katzson did not respond to the complaint. After numerous attempts to contact Katzson by telephone and through the mail, Complainant filed a motion for entry of a default order on April 24, 1985. A copy of the motion and of the proposed default order were sent by certified mail, return receipt requested, to Mr. Katzson. The receipt was signed and returned by J. Rudisill. Katzson did not respond to the motion. On June 28, 1985, a Default Order was entered and a copy sent to Seymour Katzson by certified mail, return receipt requested. Mr. Katzson signed the return receipt.

II

The gravaman of Katzson Brothers' appeal is that it did not receive notice of the complaint, or any subsequent attempted communications from the EPA concerning this matter, until the Default Order was filed. The period in question spans sixteen months. During this time, Katzson alleges that it was subject to a systematic act of "sabotage" by Seymour Katzson's secretary, J. Rudisill, who permitted neither correspondence nor telephone calls from EPA representatives to reach Katzson's corporate officers. This argument is uncorroborated and strains all credulity.

240 CFR Part 22.

3 Katzson Brothers, Inc. did not have an agent registered with the Colorado Secretary of State nor with Dunn and Bradstreet. Affidavit of Jerry W. Goad, Assistant Regional Counsel for Region VIII, September 4, 1985.

The record shows that Katzson timely filed its 1982 Pesticide Report. On February 7, 1984, EPA notified Katzson that its 1983 report, mailed to the company in December 1983, had not been filed. Return receipt was signed by a Pat Schenedera. Seymour Katzson requested a copy of the form on February 17. On March 22, a warning letter was sent to Katzson, noting the potential for legal action to enforce compliance. Return receipt was signed by an L.M. Eddy. In September, 1984, EPA made three phone calls to Katzson Brothers, Inc., and once spoke with Seymour Katzson. Mr. Katzson requested a third form, which was sent. The other two calls went unanswered.

On February 20, 1985, the instant complaint along with notice of opportunity for a hearing and notice of opportunity for settlement was filed.4 Return receipt was signed by Seymour Katzson's secretary, J. Rudisill. During March 1985, EPA logged five unreturned phone calls to Seymour Katzson. On April 22, EPA sent Katzson Brothers a copy of its Motion for Default and Proposed Default Order, pursuant to 40 CFR § 22.17. Return receipt was signed by J. Rudisill. No answer was filed. During June 1985, EPA twice attempted to telephone Seymour Katzson without success. The Default Order was entered on June 28, 1985. Seymour Katzson received the Default Order promptly and immediately contacted EPA on July 2, 1985.

Katzson contends that service of process on J. Rudisill, Seymour Katzson's secretary, was insufficient as a matter of due process of law. To the contrary, I hold that service of process on the secretary fully comported with basic notions of due process. The Consolidated Rules of Practice require:

(1) Service of Complaint.

(i) Service of a copy of the signed original of the
complaint, together with a copy of these rules of
practice, may be made personally or by certified mail,
return receipt requested, on the respondent (or his
representative).

(ii) Service upon a domestic * * * corporation shall
be made by personal service or certified mail, as
prescribed by paragraph (b)(1)(i) of this section, di-
rected to **
person authorized by
Federal or State law to receive service of process.

*

any

** *

4 Katzson timely filed its 1984 Pesticide Report.

* * *

40 CFR § 22.05(b)(1)(i) & (ii) (emphasis added).

Under Federal law, persons entitled to notice of an agency hearing must be timely informed of the time, place and nature of the hearing; the legal authority and jurisdiction under which the hearing is to be held; and the matters of fact and law asserted. Administrative Procedure Act, 5 U.S.C. §554(b). Katzson does not challenge the content of the instant notice. Federal case law has elaborated on § 554(b), holding that although administrative agencies are not bound by the same details of procedure as courts, they are governed by the same basic requirements of fairness and notice. Hess & Clark, Division of Rhodia, Inc. v. Food & Drug Administration, 495 F.2d 975 (1974).

In Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950), the Supreme Court of the United States held that notice "must be of such nature as to reasonably convey the required information * ** and it must afford a reasonable time for those inter

ested to make their appearance *** if with due regard for the practicalities and peculiarities of the case these conditions are reasonably met the constitutional requirements are satisfied." Id. at 31415. The Court held that the means employed must show a reasonable and diligent effort to accomplish service. Where customary forms of service are impracticable, alternative means chosen must not be substantially less likely "to bring home notice." Id. at 315.

Administrative agencies are not bound by the standards of the Federal Rules of Civil Procedure. Oak Tree Farm Dairy, Inc. v. Block, 544 F.Supp. 1351, 1356, n. 3 (E.D. N.Y. 1982) (administrative agencies enjoy "wide latitude" in fashioning their own rules of procedure).5 Notice must serve notions of fundamental fairness. Mathews v. Eldridge, 424 U.S. 319 (1976); see also Lassiter v. Department of Social Services, 452 U.S. 18 (1981). Fairness is evaluated by balancing the private interest affected by official action, the risk of erroneous deprivation of that interest through the procedures used and the probable value of additional procedures, and the government's interest, including the function involved and the fiscal and administrative burden that additional procedures would entail. Mathews v. Eldridge, 424 U.S. at 335. The courts have repeatedly recognized that the massive amounts of complex and specialized litigation undertaken by administrative agencies require that due process be meted out in terms that are fair, feasible and efficient. See

5 Katzson's argument that service is proper only upon an agent of the corporation, as per Fed. R. Civ. P. 4, contradicts the less rigorous approach of § 22.05(b).