                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                February 1, 2006

                       ))))))))))))))))))))))))))         Charles R. Fulbruge III
                                                                  Clerk
                             No. 04-40802

                       ))))))))))))))))))))))))))

                       FLEMING COMPANIES, INC.,

                         Plaintiff–Appellant,

                                     v.

                      DEPARTMENT OF AGRICULTURE,

                         Defendant–Appellee.


             Appeal from the United States District Court
                   for the Eastern Division of Texas
                            4:03-CV-380-RAS


Before SMITH, DENNIS, and PRADO, Circuit Judges.

EDWARD C. PRADO, Circuit Judge:*

     In this appeal, Plaintiff–Appellant Fleming Companies, Inc.

challenges the “Batter-Coating Rule,”1 a regulation promulgated by

the U.S. Department of Agriculture (“USDA”) pursuant to the

Perishable Agricultural Commodities Act (“PACA”),2 on two grounds:

first, that the rule is invalid pursuant to Chevron U.S.A., Inc.


     *
       Pursuant to 5TH CIRCUIT RULE 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIRCUIT
RULE 47.5.4.
     1
         7 C.F.R. § 46.2(u) (2005).
     2
         7 U.S.C. § 499a–s (1996).

                                     1
v. National Resources Defense Council, Inc.;3 second, that the

USDA’s decision-making with regard to the Batter-Coating Rule was

“arbitrary and capricious” in violation of the Administrative

Procedures Act (“APA”).4 Essentially for the reasons articulated

by the district court in its comprehensive opinion on motions for

summary judgment, Fleming Companies, Inc. v. U.S. Department of

Agriculture, 322 F.Supp.2d 744 (E.D.Tex. 2004), we AFFIRM.




     3
         467 U.S. 837 (1984).
     4
         5 U.S.C. § 706(2)(A) (1996).

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