Debra Estey v. Commissioner, Maine Department of Human Services

CYR,’ Circuit Judge

(dissenting).

Although the court proposes a plausible alternative, I cannot agree that the Exclusion 11 interpretation adopted by the United States Department of Agriculture (“USDA”) is “arbitrary, capricious, or manifestly contrary to the statute.” Chevron U.S.A., Inc. v. National Resource Defense Council, 467 U.S. 837, 844, 104 S.Ct. 2778, 2782, 81 L.Ed.2d 694 (1984). Not only are statutory interpretations by an administering agency entitled to deferential review, id., but the *1208rationale underlying the Chevron doctrine is fully implicated in this case. I would therefore accord Chevron deference to USDA’s interpretation of the pivotal language “energy assistance [payments],” as excluding ordinary utility reimbursements (“URs”).

First, the omnibus regulatory scheme established under the Food Stamp Act (“FSA”) is “technical and complex” both in its literal statutory manifestation and in its interdependent implementation with several elaborate federal and state public assistance statutes administered by other agencies (e.g., HUD and FmHA). See id. at 865, 104 S.Ct. at 2792; Maryland Dep’t of Human Resources v. United States Dep’t of Agric., 976 F.2d 1462, 1470 (4th Cir.1992). As a consequence of its accustomed immersion in the intricacies of the FSA, and its intimate familiarity with related statutory schemes, the USDA, like other administering agencies, ordinarily is presumed to have the confidence of Congress in affording interstitial interpretations of statutes entrusted to its administration. See Chevron, 467 U.S. at 865, 104 S.Ct. at 2792 (“Judges are not experts in the field....”); Sierra Club v. Larson, 2 F.3d 462, 468-69 (1st Cir.1993); Aronson v. IRS, 973 F.2d 962, 965 (1st Cir.1992); Evans v. Commissioner of Maine Dep’t of Human Servs., 933 F.2d 1, 7 (1st Cir.1991). Further, as a politically accountable executive agency, generally speaking the USDA should be left to “strike the [policy] balance” not struck by Congress, and to reach “a reasonable accommodation of manifestly competing interests.” Chevron, 467 U.S. at 865-66, 104 S.Ct. at 2792 (emphasis added). The policy choices plainly implicated by the FSA’s provisions on income inclusion and exclusion, and Congress’s repeated failure to countermand USDA’s longstanding policy favoring inclusion of URs, see Zemel v. Rusk, 381 U.S. 1, 12, 85 S.Ct. 1271, 1278, 14 L.Ed.2d 179 (1965), present a textbook case for Chevron deference. Lastly, ever since 1980, after considering Exclusion 11 and its legislative history “in a detailed and reasoned fashion,” Chevron, 467 U.S. at 865, 104 S.Ct. at 2792, the USDA consistently has concluded that Congress did not intend to insulate food stamp recipients from energy cost increases that routinely accompany inflationary rises in the nature of “normal household living expenses.” 7 C.F.R. § 273.9(c)(5) (1993).

I readily acknowledge, of course, that Chevron does not dictate judicial deference to agency interpretations in all circumstances. See, e.g., Larson, 2 F.3d at 468 (under Chevron, “courts have the last word on statutory interpretation [and] the question is one of how much weight to be accorded to agency views”) (emphasis added). In my view, however, after charting the course for its two-tiered Chevron inquiry, the court misplaces its compass by withholding deference on impermissible grounds.

The overarching aim of the Chevron analysis is to determine “whether Congress has directly spoken to the precise question at issue.” Chevron, 467 U.S. at 842, 104 S.Ct. at 2782 (emphasis added); see K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291-92, 108 S.Ct. 1811, 1817-18, 100 L.Ed.2d 313 (1988) (“[A] reviewing court must first determine if the regulation is consistent with the language of the statute ... [or] [i]f the statute is silent or ambiguous with respect to the specific issue addressed by the regulation_”) (emphasis added). In the present case, the court frames the inquiry less precisely than Chevron requires. See supra p. 1201 (the issue is “whether ‘energy assistance’ under [Exclusion 11] encompasses only payments offsetting rapidly rising energy costs”). Under the Chevron framework, the “precise question,” Chevron, 467 U.S. at 842, 104 S.Ct. at 2781, thus the controlling one, is much more narrowly focused: Has Congress expressed a “specific intention” to include or exclude HUD and FmHA URs from the ambit of the phrase “payments] ... for energy assistance”? Cf. id. at 845, 104 S.Ct. at 2783 (inquiring whether Congress evinced its “specific intention” to apply EPA’s proposed “bubble concept” to the statutory term “stationary [air pollution] source”).

Language, Structure, and Purposes of the FSA and Exclusion 11

If the undefined term “energy assistance [payment]” has a plain and determinate meaning under the FSA, as the court suggests, see supra p. 1201 (“a[ny] public subsidy for the purchase of energy”); but cf. Dion *1209v. Commissioner of Maine Dep’t of Human Resources, 933 F.2d 13, 15-16 (1st Cir.1991) (rejecting USDA interpretation of “child,” based on FSA’s variant uses of same term), then the initial prong under the Chevron inquiry is met, and the USDA cannot prevail no matter how plausible its interpretation. See Public Employees Retirement Syst. v. Betts, 492 U.S. 158, 171, 109 S.Ct. 2854, 2863, 106 L.Ed.2d 134 (1989). However, the USDA does not disagree that the term “energy assistance [payment],” viewed in isolation, is susceptible to more expansive interpretation. Rather, it contends that the statutory and historical contexts of Exclusion 11 support the narrower construction given it by the agency. See Skidgel v. Maine Dep’t of Human Servs., 994 F.2d 930, 937 (1st Cir.1993) (“plainness” of legislative language must be considered in the context of the entire statute and its policy goals); see also National R.R. Passenger Corp. v. Boston & Maine Corp., — U.S. -, -, 112 S.Ct. 1394, 1401, 118 L.Ed.2d 52 (1992) (same). Thus, at least three related impediments must be overcome before the term “energy assistance [payment]” can be considered sufficiently “plain” to warrant withholding Chevron deference in this case.

First, at the same time it explicitly added “income” exclusions to the FSA in 1977, Congress clearly evidenced its intention that the statute’s “broad-gauged definition of income ... measure income as broadly as possible to be fair to all [FSA] recipients as well as to the tax-paying public and not simply by reference to purchasing power available for food.” H.R.Rep. No. 464, 95th Cong., 1st Sess. 27 (1977), reprinted in 1977 U.S.C.C.A.N. 1704, 1978, 2004; see 7 U.S.C. § 2014(d) (“Household income for purposes of the [FSA] shall include all income from whatever source excluding only:...”) (emphasis added). Given this historical context, it would seem appropriate to recognize that the FSA’s broadly gauged “income” inclusion provision strongly suggests that exclusions from “income” under the FSA- are to be strictly limited, lending considerable rational force to the USDA’s limiting interpretation of the Exclusion 11 term “energy assistance [payments].” Cf., e.g., Commissioner v. Jacobson, 336 U.S. 28, 49, 69 S.Ct. 358, 369, 93 L.Ed. 477 (1949) (Internal Revenue Code’s deliberately broad definition of taxable “income” necessitates limiting interpretation relating to exemptions).

Second, the court concedes that the entire phrase “energy assistance [payments]” — not merely its discrete component “energy assistance” — is ambiguous in one important and unmistakable respect; viz., viewed as a unitary federal assistance payment, the average HUD or FmHA UR — unlike, for example, a payment made pursuant to the Low Income Home Energy Assistance Act, see supra pp. 1201-02 — obviously is not purely a “payment[ ] or allowance[ ] made for the purpose of providing energy assistance,” but often includes various nonenérgy components (e.g., water charges, trash collection charges). The court proposes to avoid the looming interpretive dilemma in its path by requiring the agency to segregate these nonenergy UR components from the energy component. See supra p. 1202.7 As the district court *1210aptly noted, however, the entire phrase “payments ... made for the purpose of energy assistance” suffers from a latent ambiguity and raises a serious question as to whether the 96th Congress ever considered the possibility that Exclusion 11 might be interpreted to include discrete portions of “mixed” or multi-purpose utility payments like HUD and FmHA URs. •

Finally, the conclusion that the USDA interpretation is at odds with the legislative policy underlying the FSA does not withstand scrutiny. Recipients of HUD and FmHA URs can lay claim to no special burden under the food stamp scheme. Congress itself has recognized the principle of “fairness” which underlies the FSA’s narrowly-drawn income exclusions, and the competing interests at stake in any benefit allocation made by government. See H.R.Rep. No. 464, supra, at 27. While acknowledging that families with the lowest incomes often feel the financial brunt of this congressional policy choice, the USDA assiduously acts to further that legislative policy by treating as includible income many other routine and need-based assistance payments which increase a family’s real purchasing power. See, e.g., 7. C.F.R. § 273.9(b)(2)(i) (supplemental SSI and AFDC, and “other assistance programs based on need” are includible in food stamp “unearned income”) (emphasis added); id. § 273.9(b)(2)(ii) (veteran’s and unemployment compensation payments); id. § 273.9(b)(2)(iv) (scholarships). Thus, notwithstanding the strong humanitarian preference for affording maximum nutritional benefits to needy families, it is precisely this type of policy balancing, and allocation of finite governmental resources, that Chevron normally ordains be left to politically accountable administering agencies rather than the courts. See Chevron, 467 U.S. at 866, 104 S.Ct. at 2793 (“[F]ederal judges — who have no constituency — have a duty to respect legitimate policy choices made by those who do.”).

In sum, the “precise question” for determination under the Chevron analysis is whether the FSA evinces Congress’s “specific intention” to bring HUD and FmHA UR payments within Exclusion 11. Although in my view the operative phrase “payments ... for energy assistance” is ambiguous, the very least these three impediments to a “plain” language interpretation require is careful attention to any relevant legislative history which might throw light on its meaning.

Legislative History of FSA and Exclusion 11

The focus of the search is on any historical evidence of a specific congressional intent to classify URs as “energy assistance” payments or, alternatively, evidence that Congress left this type of definitional task to agency expertise. See Chevron, 467 U.S. at 844, 104 S.Ct. at 2782 (“Sometimes the legislative delegation to an agency on a particular question is implicit rather than explicit.”). The relevant legislative history confirms that Exclusion 11 is at least ambiguous on the matter at issue. See Dion, 933 F.2d at 16 (looking to legislative history to confirm nonambiguity of statutory language).

I readily agree with the court that its proposed interpretation of the various pre-enactment committee reports is eminently reasonable. On the other hand, the USDA points to several references in the committee reports suggesting that Congress, in the wake of the unprecedented OPEC oil crisis, contemplated no exclusion from “income” for federal “energy assistance” payments to FSA recipients, except for “extraordinary” energy expenses not already addressed through the “ordinary mechanisms” in the FSA for accommodating normal inflationary eost-of-living increases. S.Rep. No. 394, 96th Cong., 2d Sess. 111 (1980), reprinted in 1980 U.S.C.C.A.N. 410, 520.

The pivotal Committee Report, H.R.Rep. No. 788, 96th Cong., 2d Sess. 122-23 (1980), reprinted in 1980 U.S.C.C.AN. 843, 955-56 [hereinafter: “House Report No. 788”], see supra pp. 1204-05, cites to particular examples of recently enacted federal statutes providing “payments ... for the purpose of energy assistance.” See, e.g., Home Energy Assistance Act, 94 Stat. 229 (1976) (formerly codified at 42 U.S’.C. §§ 8601-8612 (1976)). (repealed and reenacted as Low-Income Home Energy Assistance Act, Pub.L. No. 97-35, §§ 2601-2610, 95 Stat. 893 (1981) (codified at 42 U.S.C. §§ 8622-8629 (1982))) *1211[hereinafter: LIHEAA or LIHEAP]; see also S.Rep. No. 394, supra at 111 (committee report on LIHEAA). House Report No. 788 noted that the federal “intervention” payments authorized under these “new” programs had enabled low income households to “meet the dramatic increases in home heating costs,” “to buy the same amount of energy they would have' utilized in past years without having to diminish their already marginal incomes,” and thereby “represent ] more of a wash .transaction than any real increase in the [FSA] recipient or benefited household’s purchasing power.” H.R.Rep. No. 788, supra, at 122, 1980 U.S.C.C.A.N. at 955. (emphasis added).

Although these references may not compel the interpretation adopted by the USDA, they surely support a permissible inference that this was the specific type of federal “energy assistance” payment targeted by Exclusion 11. Having promptly adopted this statutory gloss, both in its regulatory definition, see 7 C.F.R. § 273.9(c)(5) (FSA “income” includes all reimbursements for “normal household living expenses” which “do not represent a gain or benefit to the household”), and in practice, the USDA maintains that FSA income exclusions for reimbursements of routine energy costs would go well beyond merely holding FSA recipients “harmless,” for the obvious reason that the FSA, HUD, and FmHA programs already contain mechanisms for taking into account any general inflationary energy increases (e.g., FSA’s “standard” and “excess shelter” deductions).

Similarly, House Report No. 788 demonstrates that Congress did not hesitate to delegate significant discretion to the USDA to determine which state-paid benefits are properly classified “energy assistance [payments]” under Exclusion 11, see H.R.Rep. No. 788, supra, at 123, 1980 U.S.C.C.A.N. at 956 (“provided that [the USDA] is satisfied that the increase in [state or local] benefits ... is, in fact, an energy assistance-related increase and not simply a general welfare increase”) (emphasis added). Significantly, one criterion Congress established for guiding the USDA’s classification of these benefits is that state benefit increases could only be considered “energy assistance [payments]” “to the extent that the increase is attributable to high heating costs rather than general inflationary conditions.” Id. (emphasis added).

“Hold Harmless” Payments

The court offers two rejoinders to the USDA’s reading of the legislative history. With respect, I believe both are flawed. First, moving beyond its questionablé conclusion that nothing in House Report No. 788 confirms the USDA’s interpretation of “energy assistance [payments],” the court states that the USDA’s policy choice is “at odds” with the legislative history. See supra p. 1205. The court’s statement presumably stems from two premises: (1) USDA’s practice of including URs as food stamp “income” fails to hold food stamp families “harmless” by ensuring that “a household’s expenditures for energy remain constant as a percentage of household income, from year to year,” and (2) hypothetical UR payments might sometimes contain reimbursements for superinfla-tionary energy cost increases, for which URs would hold tenants “harmless.” In order to assess the soundness of these two premises, it is necessary first to determine what Congress meant when it said that the “new” energy programs were designed to hold recipient families “harmless” for “energy assistance” payments, LIHEAP being a known type of “new” energy assistance payment.

Congress enacted LIHEAA intending that “new” programs of its type would supplement preexisting governmental assistance programs which had not previously provided benefit adjustments to low income households to account for energy cost increases which outpaced general cost-of-living increases. See S.Rep. No. 394, supra, at 111, 1980 U.S.C.C.AN. at 520 (expressing concern that “the ordinary mechanisms for adjusting income assistance programs to the rising costs of living may be inadequate to meet the extraordinary increases which have taken place in energy costs”) (emphasis added). Thus, when enacting LIHEAA, Congress ostensibly determined that preexisting statutory mechanisms for making adjustments for “substantial [energy rate] increases,” like those already incorporated in the FSA, HUD *1212and FmHA programs, were ill-designed to offset recent and unprecedented “spike” increases in energy costs, and opted to reimburse food stamp recipients in Jull for all otherwise unreimbursed expenditures for these past and future “spike” increases. Cf. 42 U.S.C. § 8624(f) (LIHEAP payments not includible as “income” in calculating food stamp entitlements). Thus, in two senses, food stamp recipients realized no real “gain” from LIHEAA: (1) LIHEAP payments merely offset superinflationary energy cost increases, and food stamp recipients were simply restored to their pre-OPEC financial position, so as to afford them the same amount of energy as before the oil crisis, without loss of real spending power, and (2) since these superinflationary energy cost increases were not being offset by any other statutory cost-of-living assistance provision, LIHEAP payments would effect no double compensation, or “gain,” to food stamp families. In these respects, therefore, LIHEAA worked a complete “wash.”

On the other hand, consider the following hypothetical calculations of representative housing assistance payments and URs: .

1990 1991 approved rent $300 $300 + utility allowance $ 60 $ 72
approved shelter cost $360 $372
30% family income of $150 $ 45 $ 45
housing assistance payment $315 $327
— approved rent $300 $300
utility reimbursement $ 15 $ 27

The utility allowance, which may or may not reflect actual utility costs, is an average figure calculated by the “landlord” for all units in a covered facility, and is designed to afford tenants an “adequate” allowance for household utilities, while deterring inefficient energy usage. As the court points out, “substantial” annual increases in energy rates (e.g., more than 10%) might require the “landlord” to make corresponding increases in the preset utility allowance. See 7 C.F.R. pt. 1930, subpt. C, exh. E.IX.C; 24 C.F.R. §§ 882.214, 966.478. So, in our hypothetical, if utility rates increased to $72 over one year, a 20% increase, the tenant’s UR would increase from $16 to $27. If the general or across-the-board inflation rate for the same year were only 15%, then one-quarter of the $12 increase in the UR paid to the tenant, or $3, could be considered an additional reimbursement for utility cost increases beyond the general inflationary rate, and some lesser portion of that segregable payment of $3 would be for superinflationary energy (as opposed to nonenergy utility) price increases. Accordingly, our hypothetical $27 UR would include three components: basic energy cost ($16), general inflationary increase ($9), and superinflationary increase ($3).

When the identical “hold harmless” analysis just applied to LIHEAP is applied to the housing URs Congress established prior to its enactment of LIHEAA, the flaw in the thesis advanced by the court becomes clear.8 Unlike LIHEAP payments, URs simply are not payments made pursuant to a “new program” as specifically referred to in House Report No. 788. [See supra pp. 1201-02.] For example, HUD’s section 8 housing legislation was enacted in 1974, see P.L. No. 93-383, § 201(a), 88 Stat. 653 (1974) (codified at 42 U.S.C. § 1437f), well before Congress can reasonably be thought to have foreseen the superinflationary energy price increases experienced in the late 1970s. When URs were first established, therefore, Congress could not have contemplated, let alone intended, that the UR’s “basic cost” component ($15) or its “general inflation” component ($9) would hold recipient families “harmless” in the two special senses in which LIHEAA later benefited its recipients. Prior to their initial entitlement to URs, low income families presumably paid the full $60 utility cost from income; whereas immediately after the establishment of URs, it cost the same family only $45 to purchase the same amount of energy it had purchased for $60 the previous year. Congress established the “basic cost” component in utility allowances and URs to reduce the percentage of household income *1213that must be expended for energy regardless of past inflationary trends. Thus coupled with an adequate internal mechanism for making future adjustments for general inflationary increases, the UR worked a real $15 increase in overall purchasing power, not merely a “wash.”

At most, therefore, the court has demonstrated in theory that the USDA might be required at some time in the future to exclude a relatively small portion of some URs from food stamp “income”; viz., the $3 (or less) of the hypothetical $27 UR attributable to any “superinflationary component.” But this theory inevitably imports serious conceptual impediments of its own.

First, in defense of this theory the court disregards the unitary nature of UR payments, opining that the USDA can easily segregate URs into their energy and nonen-ergy components, thereby smoothing the path for its conclusion that the UR’s energy component alone qualifies for “exclusion” from FSA “income.” See supra p. 1202; but cf. supra pp. 1209-10. Having thus disregarded the unitary nature of UR payments, the court cannot then credibly suggest that the USDA would be acting arbitrarily by segregating and excluding from FSA income a UR’s hypothetical' superinflationary component ($8) while at the same time including the UR’s “basic cost” ($15) and “general inflation” ($9) components in FSA income. Second, and more importantly, no part of any UR will include such a superinflationary component during periods of subinflationary, stable, or declining energy prices. Indeed, the USDA concedes that it may be appropriate to exclude from FSA income a UR which actually represents a reimbursement for su-perinflationary energy increases. Given general economic trends in the late 1980s and early 1990s, however, appellants advisedly have not argued that their own URs covered any superinflationary energy price increases, nor do they suggest that USDA has attempted to include any such superinflationary component in any other food stamp recipient’s “income.” Rather, the USDA continues to include HUD and FmHA URs in food stamp “income” on the theory that unless proven to contain some superinflationary component, current HUD and FmHA URs presumably reimburse only “routine” energy costs and subinflationary increases in energy costs. The current USDA regulations flexibly track this presumption by reference to the includi-bility of all reimbursements for “normal household living expenses.” As a consequence, I find no support for the thesis that the USDA’s policy choice is “at odds” with the legislative history.

State “Energy Assistance” Payments

As its second rejoinder, the court takes the position that the language quoted from House Report No. 788, see supra at p. 1204, considered in context, can lead to one reasonable conclusion only — that Congress was particularly concerned that “state and local governments might pass off increases in existing, nonenergy-related welfare program payments as ‘energy assistance’” so as to shift local welfare burdens to federally-funded programs (e.g., the FSA program). Once again, however, this thesis does not withstand close scrutiny, let alone begin to dispel the plausibility of the alternative view advanced by the USDA.

If this sort of burden shifting had indeed been a matter of significant legislative concern, it would have been a simple matter for Congress to authorize a FSA income exclusion for all bona fide energy cost assistance paid to food stamp recipients by the States. All Congress need have done is to require States to satisfy the Secretary that any increases in state-paid benefits were for food stamp recipients’ energy cost increases, rather than their nonenergy cost increases. In addition to its threshold requirement that energy cost increases be the “but-for cause” of any increase in a state’s reimbursements, however, Congress imposed a second, subsidiary condition: even a state’s bona fide energy-related reimbursements should be exempt under Exclusion 11 “only to the extent that the [benefit] increase is attributable to high heating costs rather than general inflationary conditions.” The court- has not explained how Congress could have meant to thwart improper diversions of State welfare program costs by prohibiting FSA income exclusions for bona fide subinflationary ener*1214gy cost reimbursements by a State, if federal payments for the same purposes were readily exeludible from food stamp income. In sharp contrast, the reading -given House Report No. 788 by the USDA dovetails neatly with the stated goals of “new” federal programs, such as LIHEAA, which Congress referred to as prototypes of federal “intervention” payments for “energy assistance.”

In conclusion, the USDA’s interpretation is corroborated both by a reasonable reading of Exclusion ll’s ambiguous language and its legislative history. There is no statutory or historical evidence whatever that Congress has evinced a “specific intention” to include HUD and FmHA URs within the Exclusion 11 language: “payment[s] ... for energy assistance.” Congress has- never once alluded to HUD and FmHA URs as “energy assistance [payments],” even though URs preceded the enactment of Exclusion 11 by some six years. See, e.g., P.L. No. 93-383, § 201(a), 88 Stat. 653 (1974). Chevron deference is not dependent on a determination “that the agency construction was the only [permissible] one ..., or even the reading the court would have reached if the question initially had arisen in a judicial setting.” Chevron, 467 U.S. at 843 n. 11, 104 S.Ct. at 2782 n. 11.

Notwithstanding its able effort to dispel the permeant ambiguity in the relevant legislative history, and interpret Exclusion 11 apart from its unique historical context, the court has disclosed no suggestion that Congress ever intimated its- disapproval of the USDA’s longstanding policy against treating routine utility reimbursements as “energy assistance [payments].” Although I recognize that “[c]ongressional inaction frequently betokens unawareness, preoccupation, or paralysis,” Zuber, 396 U.S. at 185-86 n. 21, 90 S.Ct. at 323-24 n. 21, Congress has amended Exclusion 11 not once but twice since the USDA adopted its present policy on URs. See, e.g., Lorillard v. Pons, 434 U.S. 575, 580, 98 S.Ct. 866, 870, 55 L.Ed.2d 40 (1978) (noting: “Congress is presumed to be aware of an administrative ... interpretation of a statute and to adopt that interpretation when it re-enacts a statute without change”) (emphasis added). Nevertheless, implicit in the approach adopted by the court is the impermissible presumption that on both occasions when Exclusion 11 was amended, Congress was unfamiliar with the administering agency’s policy position on the very provision upon which the agency’s policy depends. See Pub.L. No. 100-435, § 343, 102 Stat. 1647, 1663-64 (1988); S.Rep. No. 397, 100th Cong., 2d Sess. 28-29 (1988), reprinted in 1988 U.S.C.C.A.N. 2239, 2266-67 (designating FSA amendment as a “technical correction” which “is not intended to change current policy”) (emphasis added). Not only is there no statutory or historical basis for this presumption but it undermines Chevron itself, which would otherwise require deference to the reasoned interpretation of Exclusion 11 adopted by the USDA as the FSA’s administering agency.

For the foregoing reasons, I respectfully dissent.

. Given the FSA’s complex structure, and the internal cross-references in Exclusion 11 to other federal and state statutes of comparable complexity, it is difficult to accept the facile conclusion that segregation of the energy component from the nonenergy components in URs would pose no significant administrative burden. The USDA vigorously insists otherwise, and the district court prudently bypassed the entire administrative implementation issue. See Estey, 814 F.Supp. at 158 n. 2. On the other hand, this court bases its “minimal administrative burden" thesis solely on an examination of the cold appellate record, including the FSA, HUD, and FmHA implementing regulations, without the benefit of a developed record relating to the types of problems which might portend serious administrative burdens.

The USDA does not set, monitor, or control HUD or FmHA utility allowances, nor the annual adjustments to those allowances. Thus, even though segregation may appear a "simple matter of arithmetic” in the abstract, it cannot simply be assumed that segregation would not entail elaborate interagency monitoring and policing — for example, between the USDA and HUD to ensure that food stamp recipients correctly declare the appropriate components of their URs as excludible income. Absent some contrary evidence, therefore, the USDA’s assessment of the likely burdens entailed in implementing such an administrative regime warrants prima facie deference.

. The court concludes that "USDA’s practice of counting the energy component of [URs] as income does not hold tenants ‘harmless’ for the assistance they receive.” See supra pp. 1205-06. Regardless whether this is the right answer, however, the court has not posed the right question. The appropriate inquiry is whether these HUD and FmHA housing programs were intended to hold families harmless in the same way LIHEAA was meant to do.