Full opinion text
MEMORANDUM OPINION AND ORDER REGARDING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT BENNETT, District Judge. TABLE OF CONTENTS I. INTRODUCTION AND BACKGROUND.1028 II. STANDARDS FOR SUMMARY JUDGMENT.1029 III. FINDINGS OF FACT. 1030 IV. LEGAL ANALYSIS .1032 A. Preemption Doctrine .1032 1. “Statutory” preemption. 1032 a. “Flavors” of statutory preemption.1033 b. Congressional intent.;. ...1034 e. The presumption against preemption.1034 2. “Agency” or “regulatory” preemption.. 1036 a. Source and legitimacy. 1036 b. Nature of the agency preemption inquiry.'..1036 i. The agency’s intent to preempt state law..1038 ii. The agency’s authority to preempt state law.1038 c. Deference to agency determinations to preempt state law.1040 i. The City of New York analysis.1042 ii. The applicability of Chevron..■.1044 iii. The continued relevance of congressional intent...1047 iv. Agency accountability.1048 v. The presumption against preemption. 1050 B. The Preemptive Effect of APHIS Regulations .1051 1. Prior decisions.1051 a. Lynnbrook Farms .1051 b. Other decisions.1055 2. This court’s preemption analysis.1057 a. APHIS’s intent to preempt.1057 b. Congressional authorization. 1060 c. Are the Garrelts’ claims preempted?.1069 C. Certification For Interlocutory Appeal.1070 V. CONCLUSION.1071 Defendant’s motion for summary judgment in this products liability action involving a cattle vaccine poses the question of whether certain state tort claims are barred by federal “agency” or “regulatory” preemption, as distinct from federal “statutory” preemption. Thus, not only does the scope of preemption here involve questions of federalism and supremacy among sovereigns, it also involves the still more complicated questions that arise when an agency, a delegatee of Congress, not Congress itself, exercises, or is asserted to be exercising, supreme federal power. These questions involve the judiciary in an intricate dance between fulfilling its role as a co-equal branch of government charged with reviewing the exercise of federal power and the deference the judiciary is nonetheless supposed to accord most federal agency interpretations of congressional acts. In other words, what is at stake here, in this court’s view, is both the concrete question of whether a particular individual has a remedy for alleged wrongs, and the abstract question of the constitutional scope of an agency’s power to determine its own jurisdiction. In their complaint, plaintiffs allege that they suffered injuries when one of them accidentally inoculated himself with a veterinary vaccine for cattle manufactured by the defendant. The defendant has moved for summary judgment, asserting that the plaintiffs’ state-law claims are preempted by federal agency regulations. At its most basic level, the question raised by defendant’s motion for summary judgment, therefore, is whether regulations promulgated by a federal agency pursuant to the Virus-Serum-Toxin Act (VSTA), 21 U.S.C. §§ 151-159, preempt plaintiffs’ state tort claims, because plaintiffs’ claims are allegedly premised on inadequate labeling of a product whose label had been approved by the agency under its regulations. I. INTRODUCTION AND BACKGROUND Plaintiffs John W. Garrelts and Judith K. Garrelts filed their complaint in this action on October 11, 1995, against defendant SmithKline Beecham Corporation d/b/a SmithKline Beecham Animal Products (SBC). Subject matter jurisdiction is based on diversity of citizenship and sufficient amount in controversy. See 28 U.S.C. § 1332. The Garrelts allege that John suffered injuries when he accidentally inoculated himself with SBC’s Ultrabac 7 vaccine for cattle. The Garrelts allege that SBC’s Ultra-bac 7 vaccine was defective in that product labeling on the vaccine failed to warn against certain alleged dangers to humans in the event of accidental injection with the vaccine. SBC answered the complaint on December 13, 1995, denying, in the first instance, that its vaccine caused any injuries to the plaintiffs, and further asserting seven affirmative defenses. SBC filed a motion for summary judgment on May 10, 1996, seeking dismissal of the Garrelts’ state-law claims on the ground that these claims are preempted by regulations promulgated pursuant to the Virus-Serum-Toxin Act (VSTA), 21 U.S.C. §§ 151-159, by the Animal and Plant Health Inspection Service (APHIS) of the United States Department of Agriculture (USDA). Specifically, SBC contends that the Garrelts’ state tort claims are premised upon allegedly inadequate labeling, but that such claims are preempted by APHIS regulations, because the claims would impose requirements different from or in addition to those imposed by APHIS. SBC contends that APHIS has declared its intention to preempt state tort causes of action, and that APHIS’s decision is reasonable and within the authority granted to it by Congress. The present motion for summary judgment therefore involves the issue of “agency” or “regulatory” preemption, as distinct from the more familiar issue of “statutory” preemption. Furthermore, the court finds but little authority from the Eighth Circuit Court of Appeals concerning agency preemption, as well as little authority from any jurisdiction on the question of the propriety of APHIS’s preemption of state tort actions. However, the court recognizes, as do the parties, that almost all of the courts to consider whether APHIS’s regulations properly preempt state tort actions have found the agency’s regulations did properly preempt the state tort claims presented. The Garrelts resisted the motion for summary judgment on July 9, 1996. In essence, the Garrelts argue that the federal agency regulations do not preempt their state tort causes of action, because APHIS either did not intend, or was not authorized, to preempt causes of action based on injury to humans. In a reply brief filed July 19, 1996, SBC argues to the contrary, asserting that APHIS’s intent and authority to preempt state tort - causes of action sweep broadly enough to encompass the Garrelts’ claims. The court held oral arguments on SBC’s motion for summary judgment on August 7, 1996. At the oral arguments, the Garrelts were represented by counsel John G. Martens of Sanderson, Ridout & Martens, in Estherville, Iowa. Defendant SBC was represented by counsel Scott A. Smith of Pop-ham, Haik, Schnobrich &. Kaufman, Ltd., in Minneapolis, Minnesota, and Margaret M. Prahl of Heidman, Redmond, Fredregill, Patterson, Sehatz & Plaza, L.L.P., in Sioux City, Iowa. The parties have filed thorough and extensive briefs in support of their respective positions, and have supplemented those briefs from time to time with recent decisions involving identical issues. This matter is now deemed fully submitted. II. STANDARDS FOR SUMMARY JUDGMENT The Eighth Circuit Court of Appeals recognizes “that summary judgment is a drastic remedy and must be exercised with extreme care to prevent taking genuine issues of fact away from juries.” Wabun-Inini v. Sessions, 900 F.2d 1234, 1238 (8th Cir.1990). On the other hand, the Federal Rules of Civil Procedure have authorized for nearly 60 years “motions for summary judgment upon proper showings of the lack of a genuine, triable issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 2555, 91 L.Ed.2d 265 (1986). Thus, “summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed ‘to secure the just, speedy and inexpensive determination of every action.’” Wabun- Inini 900 F.2d at 1238 (quoting Celotex, 477 U.S. at 327, 106 S.Ct. at 2555); Hartnagel v. Norman, 953 F.2d 394, 396 (8th Cir.1992). The standard for granting summary judg- ■ ment is well established. Rule 56 of the Federal Rules of Civil Procedure states in pertinent part: Rule 56. Summary Judgment (b) For Defending Party. A party against whom a claim ... is asserted ... may, at any time, move for summary judgment in the party’s favor as to all or any part thereof. (c) Motions and Proceedings There-on_ The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(b) & (c) (emphasis added); see also Celotex, 477 U.S. at 322-23, 106 S.Ct. at 2552-53; Reliance Ins. Co. v. Shenandoah South, Inc., 81 F.3d 789, 791 (8th Cir.1996); Beyerbach v. Sears, 49 F.3d 1324, 1325 (8th Cir.1995); Munz v. Michael, 28 F.3d 795, 798 (8th Cir.1994); Roth v. U.S.S. Great Lakes Fleet, Inc., 25 F.3d 707, 708 (8th Cir.1994); Cole v. Bone, 993 F.2d 1328, 1331 (8th Cir.1993); Woodsmith Publishing Co. v. Meredith Corp., 904 F.2d 1244, 1247 (8th Cir.1990); Wabun-Inini, 900 F.2d at 1238 (citing Fed.R.Civ.P. 56(c)). Ordinarily, analysis of a motion for summary judgment focuses on whether there are genuine issues of material fact that preclude summary judgment in the movant’s favor, and instead require submission of the case to a trier of fact. See, e.g., Celotex, 477 U.S. at 323, 106 S.Ct. at 2552-53 (if the nonmoving party fails to make a sufficient showing of an essential element of a claim with respect to which it has the burden of proof, then the moving party is “entitled to judgment as a matter of law.”); Woodsmith, 904 F.2d at 1247 (same). However, in the present case, the parties agree, for the purpose of disposition of the summary judgment motion, that there are no facts in dispute. Thus, the analysis in this case focuses on the final clause of the quoted portion of Rule 56(c), that is, whether “the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c) (emphasis added). III. FINDINGS OF FACT Again, for the purpose of the court’s consideration of this motion for summary judgment only, defendant SBC concedes that the court should accept as true the material allegations contained in the Garrelts’ complaint. Thus, solely for the purposes of this summary judgment motion, the court finds the following facts to be undisputed. Plaintiff John W. Garrelts is a farmer in Palo Alto County, Iowa. John raises cattle on his farm. John sometimes vaccinates his own cattle and calves, and on May 28, 1994, he was doing just that. John had purchased Ultrabac 7 vaccine, which is manufactured by SBC, from Dr. Roger Larson, d/b/a the Clay County Veterinary Clinic. While vaccinating a young calf, John accidentally inoculated himself with the Ultrabac 7 vaccine when the calf suddenly moved. John became ill following the inoculation and was subsequently taken by ambulance to the hospital. As a result of his accidental inoculation with Ultrabac 7 vaccine, John has suffered serious injuries, allegedly including continuing disability. The label on the Ultrabac 7 vaccine container did not contain a telephone number or other means of contacting SBC in the event of accidental human inoculation with the Ul-trabac 7 vaccine. The label on the Ultrabac 7 vaccine did not warn of the possible danger to humans in the event of accidental inoculation with the vaccine, nor did the label instruct on the procedures to be taken in order to avoid self-inoculation. At the time of John’s accidental inoculation with the Ultra-bae 7 vaccine, SBC knew that accidental inoculations of humans with veterinary vaccines were occurring. Furthermore, SBC knew that humans may be seriously injured or killed if they are accidentally inoculated with the Ultrabac 7 vaccine. In addition to these pertinent facts alleged in the complaint, and recognized as undisputed for the purposes of this summary judgment motion, SBC asserts that certain other facts are also undisputed. The Garrelts have not specifically challenged any of these facts in their resistance to SBC’s motion for summary judgment, nor have they asserted that any additional facts are either undisputed or disputed. SBC’s additional undisputed facts are therefore as follows. Ultrabac 7 was licensed by APHIS for use on animals on May 30,1980, under USDA License No. 225, Code 7410.00. Through the licensing process and through post-licensing testing and evaluation, Ultrabac 7 has been determined by APHIS to. satisfy all requirements for purity, safety, potency, and efficacy contained in the APHIS standards. Furthermore, the vaccine has been designed, manufactured, and tested pursuant to APHIS standards and APHIS has approved the content and sufficiency of all design, manufacturing, and testing data submitted prior to licensing of the vaccine. In addition, the text, layout, and design of all labeling on the vaccine, including the packaging and product inserts, were specifically approved in writing by APHIS. On December 6, 1995, following the decision of the Minnesota Court of Appeals in Brandt v. Marshall Animal Clinic, 540 N.W.2d 870 (Minn.Ct.App.1995), United States Senator Paul Wellstone of Minnesota wrote to APHIS requesting that APHIS clarify whether APHIS intended its regulations to preempt state tort claims arising out of the use of licensed animal vaccines. On December 22, 1995, APHIS responded to Senator Wellstone’s inquiry by way of a letter signed by Terry L. Medley, the Acting Administrator of APHIS. In Medley’s letter, he indicated APHIS’s intent to preempt state requirements related to vaccines. Medley’s letter states, in pertinent part, the following: Thank you for your letter of December 6,1995, on behalf of your constituents Randy and Patty Brandt of Marshall, Minnesota, concerning their lawsuit against a USDA licensed manufacturer of veterinary biological products. Your letter requested a written clarification of the scope of our preemption of State law under the Virus-Serum-Toxin Act (VSTA), 21 U.S.C. 151, et seq. On October 19, 1990, we published a proposed rule in the Federal Register (55 FR 42392). The purpose of the proposed rule was to clarify our regulations with respect to State restrictions on the use and distribution of veterinary biological products and to specify how a person could request that Federal restrictions be imposed on such products. On August 27, 1992, we published our final rule (57 FR 38758). A copy of that rule is enclosed for your information. We stated in that rule that in order to maintain uniform national standards regarding veterinary biological products (including labeling), States are not free to impose requirements which are different from, or in addition to, those imposed by USDA regarding the safety, efficacy, potency, or purity of a product. We promulgated this rule in response to regulatory actions by certain States which attempted to impose requirements concerning USDA licensed veterinary biological products which were different from, or in addition to, those' imposed by USDA regarding the safety, efficacy, potency, or purity of a product. Our intent in promulgating the rule was, and continues to be, to preempt States from imposing requirements either through statutes, regulations, or other means that are different from, or in addition to, those imposed by USDA regarding the safety, efficacy, potency, or purity of a product. Such requirements would include, but are not limited to production, testing, distribution, or labeling requirements. We did not intend to preempt state common law actions for damages arising from noneompliance with USDA regulatory standards. Defendant’s Exhibit 1 to Affidavit of Smith, Letter from Medley to Wellstone (hereinafter, “Medley Letter”). Because the facts are not in dispute, the disposition of SBC’s motion for summary judgment turns not on whether there are genuine issues of material fact, but whether, in light of the undisputed facts, SBC is entitled to judgment as a matter of law on the relatively narrow issue of whether the Gar-relts’ claims are preempted by APHIS regulations. The court therefore turns to its legal analysis of the issue raised by SBC’s motion for summary judgment. TV. LEGAL ANALYSIS A. Preemption Doctrine The Supremacy Clause of the United States Constitution states that “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof ... shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or. Laws of any State to the Contrary notwithstanding.” U.S. Const, art. VI, cl. 2. This clause of the Constitution has given birth to the familiar, though not uncomplicated, doctrine of “statutory” preemption. See New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins., — U.S. -, -, 115 S.Ct. 1671, 1676, 131 L.Ed.2d 695 (1995) (Supremacy Clause gives rise to doctrine of federal preemption); CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 663, 113 S.Ct. 1732, 1737, 123 L.Ed.2d 387 (1993) (citing the Supremacy Clause as the basis for implied preemption of state law by a federal statute); Hillsborough County v. Automated Med. Labs., Inc., 471 U.S. 707, 712-13, 105 S.Ct. 2371, 2375, 85 L.Ed.2d 714 (1985) (“It is familiar and well-established principle the Supremacy Clause ... invalidates state laws that ‘interfere with, or are contrary to,’ federal law.”); Kinley Corp. v. Iowa Utilities Bd., 999 F.2d 354, 357 (8th Cir.1993) (also finding authority for congressional acts to preempt state law in the Supremacy Clause, U.S. CONST., Art. VI, cl. 2). The court begins its analysis with the doctrine of “statutory” preemption, then turns to consideration of the doctrine of “agency” preemption. I. “Statutory” preemption “Statutory” preemption is the child of congressional authority, found in the Supremacy Clause of the U.S. Constitution, and congressional action, embodied in enactment of a statute. See, e.g., New York State Conference of Blue Cross, — U.S. at -, 115 S.Ct. at 1676 (the Supreme Court’s “past cases have recognized that the Supremacy Clause, U.S. CONST., Art. VI, may entail preemption of state law” by a law enacted by Congress). When Congress has expressly preempted state law, the courts must “ ‘identify the domain expressly pre-empted’ ” by the express preemption language. Medtronic, Inc. v. Lohr, — U.S. -, -, 116 S.Ct. 2240, 2250, 135 L.Ed.2d 700 (1996) (quoting Cipollone v. Liggett Group, Inc., 505 U.S. 504, 517, 112 S.Ct. 2608, 2618, 120 L.Ed.2d 407 (1992)). Analysis of the scope of express preemption begins with the text, but interpretation of the language “does not occur in a contextual vacuum.” Id. (citing Gade v. National Solid Wastes Management Ass’n, 505 U.S. 88, 111, 112 S.Ct. 2374, 2389-90, 120 L.Ed.2d 73 (1992) (Kennedy, J., concurring in part and concurring in the judgment)). While determination of the scope of express preemption does not occur in a contextual vacuum, context is the key to a determination of the existence and scope of implied preemption. Generally, federal statutory law can preempt state law without an express statement by Congress when the federal statute implies an intention to preempt state law or when state law directly conflicts with federal law. Van Bergen v. State of Minn., 59 F.3d 1541, 1548 (8th Cir.1995) (citing New York State Conference of Blue Cross, — U.S. at -, 115 S.Ct. at 1676; Pacific Gas & Elec. Co. v. State Energy Resources Conservation & Dev. Comm’n, 461 U.S. 190, 203-04, 103 S.Ct. 1713, 1722, 75 L.Ed.2d 752 (1983)). a. “Flavors” of statutory preemption The Eighth Circuit Court of Appeals has therefore observed that “[preemption traditionally comes in four ‘flavors’ (1) “express preemption,” resulting from an express Congressional directive ousting state law (Morales v. Trans World Airlines, Inc., [504] U.S. [374], 112 S.Ct. 2031, 119 L.Ed.2d 157 (1992); (2) “implied preemption,” resulting from an inference that Congress intended to oust state law in order to achieve its objective (Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 404, 85 L.Ed. 581 (1941); (3) “conflict preemption,” resulting from the operation of the Supremacy Clause when federal and state law actually conflict, even when Congress says nothing about it (Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 143, 83 S.Ct. 1210, 1218, 10 L.Ed.2d 248 (1963); and (4) “field preemption,” resulting from a determination that Congress intended to remove an entire area from state regulatory authority (Fidelity Fed. Savs. & Loan Ass’n v. de la Cuesta, 458 U.S. 141, 153, 102 S.Ct. 3014, 3022, 73 L.Ed.2d 664 (1982)). See Pacific Gas & Elec. Co. v. State Energy Resources Conservation & Dev. Comm’n, 461 U.S. 190, 203-04, 103 S.Ct. 1713, 1721-22, 75 L.Ed.2d 752 (1983); see generally, Burt Neuborn, An overview of Preemption (Fed. Jud. Center, Feb. 9, 1993). Kinley, 999 F.2d at 358 n. 3; accord New York State Conference of Blue Cross, — U.S. at-, 115 S.Ct. at 1676 (preemption of state law occurs “either by express provision, by implication, or by a conflict between federal and state law”); Freightliner Corp. v. Myrick, — U.S. - , -, 115 S.Ct. 1483, 1487, 131 L.Ed.2d 385 (1995) (considering “express” preemption, as well as “implicit” preemption shown by an intent for federal law to “occupy the field exclusively” or from “actual conflict” of state law with federal law, or where it is “impossible for a private party to comply with both state and federal requirements,” or where state law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress,” and concluding that a court may consider whether some provisions of a federal statute impliedly preempt state law even where the statute contains an express preemption clause applicable to certain areas); CSX Transp., Inc., 507 U.S. at 663, 113 S.Ct. at 1737 (“Where a state statute conflicts with, or frustrates, federal law, the former must give way.”); Cipollone, 505 U.S. at 516, 112 S.Ct. at 2617 (preemption may be “explicitly stated in the statute’s language or implicitly contained in its structure and purpose,” and, where not made explicit, results where state law “actually conflicts” with federal law, or where federal law “so thoroughly occupies a legislative field” as to leave no room for state law to supplement it); Hillsborough County, 471 U.S. at 713, 105 S.Ct. at 2375 (identifying “express” preemption, and implied preemption, which arises where Congress “left no room” for supplementary state regulation, where a federal interest is “dominant,” where state law conflicts with federal law, such as where compliance with both federal and state law is impossible, and where state law “stands as an obstacle” to the purposes and objectives of Congress); Van Bergen, 59 F.3d at 1548 (court considers whether Congress has “occupied the field” of regulation, as well as whether the state law is in actual conflict with the federal law.); Burlington N.R.R. Co. v. State of Minnesota, 882 F.2d 1349, 1352 (8th Cir.1989) (same). Thus, federal law preempts state law not only where the two are plainly contradictory, but also where “‘the incompatibility between [them] is discernible only through inference.’” Hankins v. Finnel, 964 F.2d 853, 861 (8th Cir.1992) (quoting Hayfield Northern R.R. Co. v. Chicago & N.W. Transp. Co., 467 U.S. 622, 627, 104 S.Ct. 2610, 2614, 81 L.Ed.2d 527 (1984)), cert. denied sub nom. Missouri v. Hankins, 506 U.S. 1013, 113 S.Ct. 635, 121 L.Ed.2d 566 (1992). To put it another way, “[preemption ... will arise when ‘state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.’ ” Id. (quoting Schneidewind v. ANR Pipeline Co., 485 U.S. 293, 300, 108 S.Ct. 1145, 1150-51, 99 L.Ed.2d 316 (1988), in turn citing Hines, 312 U.S. at 67, 61 S.Ct. at 404); see also Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 248, 104 S.Ct. 615, 621, 78 L.Ed.2d 443 (1984) (preemption occurs when “it is impossible to comply with both state and federal law,” or “state law stands as an obstacle to the accomplishment of the full purposes and objectives of Congress.”); Kinley, 999 F.2d at 357 (the Supremacy Clause “ ‘invalidates state laws that “interfere with, or are contrary to,” federal law,’ ” quoting Hillsborough County v. Automated Med. Labs., Inc., 471 U.S. 707, 712, 105 S.Ct. 2371, 2375, 85 L.Ed.2d 714 (1985)). b. Congressional intent Congressional intent is the critical question in a statutory preemption analysis. Kinley, 999 F.2d at 357 (citing Louisiana Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 369, 106 S.Ct. 1890, 1898-99, 90 L.Ed.2d 369 (1986)); accord New York State Conference of Blue Cross, — U.S. at-, 115 S.Ct. at 1676 (“pre-emption claims turn on Congress’s intent”). As the Supreme Court has more recently reiterated the maxim, ‘“[t]hé purpose of Congress is the ultimate touchstone’ in every preemption case.’” Medtronic, Inc., — U.S. at -, 116 S.Ct. at 2250 (quoting Retail Clerks Int’l Ass’n, Local 1625, AFL-CIO v. Schermerhorn, 375 U.S. 96, 103, 84 S.Ct. 219, 223, 11 L.Ed.2d 179 (1963)); Cipollone, 505 U.S. at 516, 112 S.Ct. at 2617 (also recognizing this “touchstone” of preemption analysis). Thus, “any understanding of the scope of a pre-emption statute must rest primarily on ‘a fair understanding of congressional purpose.’ ” Id. (quoting Cipollone, 505 U.S. at 530 n. 27, 112 S.Ct. at 2624 n. 27 (opinion of Stevens, J.)). In determining congressional purpose, the Supreme Court looks to the “language of the preemption statute,” its surrounding “statutory framework,” and “the structure and propose of the statute as a whole.” Id. at-, 116 S.Ct. at 2251 (internal citations and quotations omitted). c. The presumption against preemption Because congressional intent is the critical question in a statutory preemption analysis, the analysis of statutory preemption begins with a presumption: [B]ecause the. States are independent sovereigns in our federal system, we have long presumed that Congress does not cavalierly pre-empt state-law causes of action. In all preemption cases, and particularly in those in which Congress has “legislated in a field which the States have traditionally occupied,” Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947), we “start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.” Id., at 230, 67 S.Ct., at 1152; Hillsborough Cty., 471 U.S., at 715-716, 105 S.Ct., at 2376; cf. Fort Halifax Packing Co. v. Coyne, 482 U.S. 1, 22, 107 S.Ct. 2211, 2223, 96 L.Ed.2d 1 (1987). Medtronic, Inc., — U.S. at-, 116 S.Ct. at 2250; see also New York State Conference of Blue Cross, — U.S. at-, 115 S.Ct. at 1676 (“despite the variety of ... opportunities for federal preeminence,” including the various “flavors” of preemption described above, the Supreme Court “ha[s] never assumed lightly that Congress has derogated state regulation, but instead ha[s] addressed claims of pre-emption with the starting presumption that Congress does not intend to supplant state law,” citing Maryland v. Louisiana, 451 U.S. 725, 746, 101 S.Ct. 2114, 2128-29, 68 L.Ed.2d 576 (1981)). Indeed, this presumption is a recurring theme in the Supreme Court’s discussions of preemption. See New York State Conference of Blue Cross, — U.S. at-, 115 S.Ct. at 1676-77 (“[I]n cases ... where federal law is said to bar state action in fields of traditional state regulation, see Hillsborough County v. Automated Medical Labs., Inc., 471 U.S. 707, 719, 105 S.Ct. 2371, 2378, 85 L.Ed.2d 714 (1985), we have worked on the ‘assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress,’ ” quoting Rice, 331 U.S. at 230, 67 S.Ct. at 1152, and also citing Cipollone, 505 U.S. at 516, 112 S.Ct. at 2617; id. at 532-33, 112 S.Ct. at 2625-26 (Blackmun, J., concurring in part, concurring in júdgment in part, and dissenting in part); Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 740, 105 S.Ct. 2380, 2389, 85 L.Ed.2d 728 (1985); Jones v. Rath Packing Co., 430 U.S. 519, 97 S.Ct. 1305, 51 L.Ed.2d 604 (1977); Napier v. Atlantic Coast Line R. Co., 272 U.S. 605, 611, 47 S.Ct. 207, 209, 71 L.Ed. 432 (1926)); CSX Transp., Inc., 507 U.S. at 663-64, 113 S.Ct. at 1737 (“In the interest of avoiding unintended encroachment on the authority of the States ... a court interpreting a federal statute pertaining to a subject traditionally governed by state law will be reluctant to find preemption. Thus, pre-emption will not he unless it is ‘the clear and manifest purpose of Congress,’ ” quoting Rice, 331 U.S. at 230, 67 S.Ct. at 1152). In Medtronic, the Supreme Court identified matters that fall within the historic police powers of the states: Throughout our history the several States have exercised their police powers to protect the health and safety of their citizens. Because these are “primarily, and historically, ... matter[s] of local concern,” Hillsborough County v. Automated Medical Laboratories, Inc., 471 U.S. 707, 719, 105 S.Ct. 2371, 2378, 85 L.Ed.2d 714 (1985), the “States traditionally have had great latitude under their police powers to legislate as to the protection of the fives, limbs, 'health, comfort, and quiet of all persons.” Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 756, 105 S.Ct. 2380, 2398, 85 L.Ed.2d 728 (1985) (internal quotation marks omitted). Medtronic, Inc., — U.S. at -, 116 S.Ct. at 2245. In order to overcome the presumption against preemption with a sufficient showing of congressional intent to preempt state law, the Supreme Court begins by examining the text of the statutory provision in question, then moves on, if need be, to the structure and purpose of the Act in which the specific statutory provision-occurs. New York State Conference of Blue Cross, — U.S. at -, 115 S.Ct. at 1677; accord Medtronic, Inc., — U.S. at-, 116 S.Ct. at 2251 (in determining congressional purpose, the Supreme Court looks to the “language of the preemption statute,” its surrounding “statutory framework,” and “the structure and purpose of the statute as a whole”); CSX Transp., Inc., 507 U.S. at 664, 113 S.Ct. at 1737 (“Evidence of pre-emptive purpose is sought in the text and structure of the statute at issue.”). Thus, in Medtronic, Inc., the Supreme Court examined not only the language of the statute, but its “basic purpose” and “legislative history.” Medtronic, Inc., — U.S. at-, 116 S.Ct. at 2252-53. The nature of “statutory” preemption and the analysis courts must bring to bear on an assertion of statutory preemption differ from the nature and analysis of questions of “agency” preemption. The court must explore these differences in some detail. 2. “Agency” or “regulatory”preemption “Agency” or “regulatory” preemption is the half sister of statutory preemption, born of congressional authority, but agency action. The question presented here is whether this half sister is illegitimate, not in parentage, but in the scope it has been given by the agency parent, and indeed by a litigant asserting the preemptive effect of agency action, in the case of particular agency regulations. a. Source and legitimacy The legitimacy of agency preemption as a general principle has been conclusively determined. The phrase “Laws of the United States” in the Supremacy Clause, the Supreme Court has held, encompasses both federal statutes and statutorily authorized federal regulations. City of New York v. FCC, 486 U.S. 57, 63, 108 S.Ct. 1637, 1642, 100 L.Ed.2d 48 (1988); Lynnbrook Farms v. SmithKline Beecham Corp., 79 F.3d 620, 623 (7th Cir.1996), cert. denied, — U.S. -, 117 S.Ct. 178, 136 L.Ed.2d 118 (1996); Time Warner Cable v. Doyle, 66 F.3d 867, 875 (7th Cir.1995), cert. denied, — U.S. -, 116 S.Ct. 974, 133 L.Ed.2d 894 (1996); Freehold Cogeneration Assocs., L.P. v. Board of Reg. Comm’rs of N.J., 44 F.3d 1178, 1190 (3d Cir.1995), cert. denied sub nom. N.J. Div. of Ratepayer Advocate v. Freehold Cogeneration Assocs., L.P., — U.S.-, 116 S.Ct. 68, 133 L.Ed.2d 29 (1995); Murphy v. SmithKline Beecham Animal Health Group, 898 F.Supp. 811, 814 (D.Kan.1995). Thus, in addition to the forms of “statutory” preemption described in the preceding subsection, the Supreme Court has repeatedly recognized “agency” preemption as a form of federal preemption of state law in which a federal agency, acting within its congressionally delegated authority, may preempt state law through a regulation or regulations. City of New York v. FCC, 486 U.S. at 63, 108 S.Ct. at 1642 (“ ‘a federal agency acting within the scope of its congressionally delegated authority may pre-empt state regulation,’ ” quoting Louisiana Pub. Serv. Comm’n, infra); Louisiana Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 369, 106 S.Ct. 1890, 1898-99, 90 L.Ed.2d 369 (1986); Hillsborough County, 471 U.S. at 713, 105 S.Ct. at 2375 (“We have repeatedly held that state laws can be pre-empted by federal regulations as well as by federal statutes.”); Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691, 699, 104 S.Ct. 2694, 2700, 81 L.Ed.2d 580 (1984) (“‘Federal regulations have no less pre-emptive effect than federal statutes,”’ quoting de la Cuesta, infra); Fidelity Fed. Sav. and Loan Ass’n v. de la Cuesta, 458 U.S. 141, 152-54, 102 S.Ct. 3014, 3022-23, 73 L.Ed.2d 664 (1982) (the Court observed that “Federal regulations have no less pre-emptive effect than federal statutes,” and the question is whether the regulation is within the agency’s statutory authority); Lynnbrook Farms, 79 F.3d at 624; Kansas ex rel. Todd v. United States, 995 F.2d 1505, 1509 (10th Cir.1993) (“An agency’s preemption regulations have no less preemptive effect than statutes,” citing de la Cuesta). Here, SBC relies solely upon the theory of agency preemption to support its motion for summary judgment. The burden of demonstrating preemption rests with SBC. Silkwood v. Kerr-McGee, Corp., 464 U.S. 238, 255, 104 S.Ct. 615, 625, 78 L.Ed.2d 443 (1984). b. Nature of the agency preemption inquiry The Supreme Court has explained that the nature of the inquiry the court must pursue when “agency” preemption is at issue differs from that described above as applicable to the question of statutory preemption: [H]ere the inquiry becomes whether the federal agency has properly exercised its own delegated authority rather than simply whether Congress has properly exer-eised the legislative power. Thus we have emphasized that in a situation where state law is claimed to be pre-empted by federal regulation, a “narrow focus on Congress’ intent to supersede state law [is] misdirected,” for “[a] pre-emptive regulation’s force does not depend on express congressional authorization to displace state law.” Fidelity Federal Savings & Loan Assn v. De la Cuesta, 458 U.S. 141, 154 [102 S.Ct. 8014, 3023, 73 L.Ed.2d 664] (1982). Instead, the correct focus is on the federal agency that seeks to displace state law and on the proper bounds of its lawful authority to undertake such action. The statutorily authorized regulations of an agency will pre-empt any state or local law that conflicts with such regulations or frustrates the purposes thereof. Beyond that, however, in proper circumstances the. agency may determine that its authority is exclusive and pre-empts any state efforts to regulate in the forbidden area. Crisp, 467 U.S., at 700 [104 S.Ct. at 2701]; De la Cuesta, supra, at 152-154 [102 S.Ct. at 3022-3023]. It has long been recognized that many of the responsibilities conferred on federal agencies involve a broad grant of authority to reconcile conflicting policies. Where this is true, the Court has cautioned that even in the area of preemption, if the agency’s choice to pre-empt “represents a reasonable accommodation of conflicting policies that were committed to the agency’s care by the statute, we should not disturb it unless it appears from the statute or its legislative history that the accommodation is not one that Congress would have sanctioned.” United States v. Shimer, 367 U.S. 374, 383 [81 S.Ct. 1554, 1560, 6 L.Ed.2d 908] (1961); see also Crisp, supra, at 700 [104 S.Ct. at 2701]. City of New York, 486 U.S. at 64, 108 S.Ct. at 1642. Thus, the Supreme Court has employed a two-prong analysis of agency preemption, looking first to see if the agency intended to pre-empt state law, then examining “whether the [agency] is legally authorized to pre-empt state and local” law or regulation. Id. at 65-66, 108 S.Ct. at 1643; Louisiana Pub. Serv. Comm’n, 476. U.S. at 374, 106 S.Ct. at 1901 (“a federal agency may pre-empt state law only when and if it is acting within the scope of its eongressionally delegated authority.”); de la Cuesta, 458 U.S. at 154, 102 S.Ct. at 3023 (“[T]he ques-, tions upon which resolution of this case rests are whether the [agency] meant to pre-empt [the state’s] law, and, if so, whether that action is within the scope of the [agency’s] delegated authority.”); Lynnbrook Farms, 79 F.3d at 624 (describing this two-prong test as “whether the power to preempt is within the bounds of authority granted to the agency by Congress, and if so, whether the agency has acted on this authority,” citing City of New York, 486 U.S. at 64, 108 S.Ct. at 1642); Time Warner Cable, 66 F.3d at 875-76 (quoting the statement of the two-prong test from Louisiana Pub. Serv. Comm’n and later as stated in de la Cuesta); Donmar Enter., Inc. v. Southern Nat'l Bank of N.C., 64 F.3d 944, 949 & n. 8 (4th Cir.1995) (the only question before the court was whether the agency had expressed pre-emptive intent, because there was “no question raised but that the regulation involved in this case was reasonable, authorized, and consistent with the underlying statute,” citing de la Cuesta for the test); First Gibraltar Bank, FSB v. Morales, 19 F.3d 1032, 1040 (5th Cir.) (“In de la Cuesta, the Court made clear that cases of administrative preemption require consideration of two questions: (1) did the agency intend to preempt the state law in question, and (2) if so, was that action within the scope of the agency’s delegated authority?” citing de la Cuesta, 458 U.S. at 154, 102 S.Ct. at 8023), cert. denied, — U.S. -, 115 S.Ct. 204, 130 L.Ed.2d 134 (1994), vacated and superseded on other grounds, 42 F.3d 895 (5th Cir.1995). i. The agency’s intent to preempt state law. As to the first prong of the analysis, whether the agency intended to preempt state law, the portion of City of New York, 486 U.S. at 64, 108 S.Ct. at 1642, quoted above demonstrates that agency preemption also comes in different “flavors.” Cf Kinley, 999 F.2d at 358 n. 3 (identifying the “flavors” of statutory preemption).' One of these “flavors” is implied preemption, in which the Supreme Court has held that “[t]he statutorily authorized regulations of an agency will pre-empt any state or local law that conflicts with such regulations or frustrates the purposes thereof.” City of New York, 486 U.S. at 64, 108 S.Ct. at 1642; Crisp, 467 U.S. at 705-08, 104 S.Ct. at 2703-05 (examining the extent to which Oklahoma law conflicted with FCC regulations, thus demonstrating implied preemption of the state’s law by the FCC). “Beyond that,” the Supreme Court wrote, there is also express agency preemption, because “in proper circumstances the agency may determine that its authority is exclusive and pre-empts any state efforts to regulate in the forbidden area.” Id. Where an agency has explicitly stated its intent to exercise exclusive authority in an area and to preempt state and local regulation, the case “does not turn on whether there is an actual conflict between federal and state law ... or whether compliance with both federal and state standards would be physically impossible.” Id. at 65-66, 108 S.Ct. at 1643 (citing de la Cuesta, 458 U.S. at 153, 102 S.Ct. at 3022). Where an agency has expressly stated an intent to preempt state law, preemption may be authorized even “where it is clearly possible for [a person] to comply with [state] standards in addition to the federal standards.” Id. at 66, 108 S.Ct. at 1643. However, where agency preemption is only implied, rather than express, the Court had previously observed that it was “even more reluctant to infer pre-emption from the comprehensiveness of regulations than from the comprehensiveness of statutes,” because [a]s a result of their specialized functions, agencies normally deal with problems in far more detail than does Congress. To infer pre-emption whenever an agency' deals with a problem comprehensively is virtually tantamount to saying that whenever a federal agency decides to step into a field, its regulations will be exclusive. Such a rule, of course, would be inconsistent with the federal-state balance embodied in our Supremacy Clause jurisprudence. Hillsborough County, 471 U.S. at 717, 105 S.Ct. at 2377. Thus, “if an agency does not speak to the question of pre-emption, [the Court] will pause before saying that the mere volume and complexity of its regulations indicate that the agency did in fact intend to preempt.” Id. at 718, 105 S.Ct. at 2377. ii. The agency’s authority to preempt state law. As to the second prong of the analysis, whether the agency acted within its delegated authority, “ ‘[a] pre-emptive regulation’s force does not depend on express congressional authorization to displace state law.’ ” City of New York, 486 U.S. at 64, 108 S.Ct. at 1642 (quoting de la Cuesta, 458 U.S. at 154, 102 S.Ct. at 3023); Lynnbrook Farms, 79 F.3d at 624 (citing de la Cuesta). Although no express congressional authorization is required, in City of New York, the Supreme Court reaffirmed its prior statement that there are at least two reasons why it is important to the determination of the agency preemption issue to discover whether the agency is acting within its congressionally delegated authority: “First, an agency literally has no power to act, let alone pre-empt the validly enacted legislation of a sovereign State, unless and until Congress confers power upon it. Second, the best way of determining whether Congress intended the regulations of an administrative agency to displace state law is to examine the nature and scope of the authority granted by Congress to the agency.” Louisiana Public Service Gomm’n, 476 U.S., at 374 [106 S.Ct. at 1901]. City of New York, 486 U.S. at 66, 108 S.Ct. at 1643. Thus, congressional intent remains critical to the propriety of agency preemption in this second prong of the inquiry. Some examples demonstrate how this prong of the analysis plays out. In City of New York, in determining the nature and scope of the authority delegated by Congress to the agency in question, the Federal Communications Commission (FCC), the Court began by reviewing the background of federal preemption on the particular issue in question, local technical standards for cable television signal quality. City of New York, 486 U.S. at 66, 108 S.Ct. at 1643. Specifically, the Court found that the power granted to the FCC under the Cable Act “mirror[ed] the state of the regulatory law before the Cable Act was passed.” Id. at 67, 108 S.Ct. at 1644. Because Congress did not indicate in the Cable Act that it explicitly disapproved of the FCC’s decade of prior regulatory policy of preemption of local technical standards, the Court “doubt[ed] that Congress intended to overturn the Commission’s decade-old policy without discussion or even any suggestion that it was doing so.” Id. at 67-68, 108 S.Ct. at 1644. Instead, the Court found in the legislative history specific indications that Congress intended the FCC’s policy of preemption to continue. Id. at 68, 108 S.Ct. at 1644. The Court therefore found “nothing in the Cable Act” that led it “to believe that the Commission’s decision to pre-empt local technical standards governing the quality of cable signals ‘is not one that Congress would have sanctioned.’” Id. at 69, 108 S.Ct. at 1645 (quoting Shimer, 367 U.S. at 383, 81 S.Ct. at 1560). In Crisp, the Court found that FCC regulations were “consistent with [the agency’s] congressionally defined charter.” Crisp, 467 U.S. at 708, 104 S.Ct. at 2705. The Court looked to statutory language to find that Congress had authorized the FCC to “ ‘make available, so far as possible, to all the people of the United States a rapid, efficient, Nation-wide and world-wide wire and radio communication service_’” Id. (quoting 47 U.S.C. § 151). The Court then concluded as follows: With that end in mind, the Commission has determined that only federal pre-emption of state and local regulation can assure cable systems the breathing space necessary to expand vigorously and provide a diverse range of program offerings to potential cable subscribers in all parts of the country. While that judgment may not enjoy universal support, it plainly represents a reasonable accommodation of competing policies committed to the FCC’s care, and we see no reason to disturb the agency’s judgment. Crisp, 467 U.S. at 708, 104 S.Ct. at 2705. The Court therefore upheld the agency’s preemptive regulations as within the authority delegated to the agency by Congress. Id. Similarly, in de la Cuesta, the Court found that the Federal Home Loan Bank Board (FHLBB) had “plenary” authority to issue the regulations in question by looking at the broad scope of the language of the authorizing statute, which specified each of the areas in which challenged preemptive regulations had been promulgated, and determined that the regulations were within the agency’s purview. de la Cuesta, 458 U.S. at 160-61, 102 S.Ct. at 3026. Congress had also specifically authorized the FHLBB to determine the “best practices” to be applied in banking regulation. Id. at 161, 102 S.Ct. at 3026. The Court read this statutory language to “suggest[ ] that Congress expressly contemplated, and approved, the Board’s promulgation of regulations superseding state law.” Id. at 162, 102 S.Ct. at 3027. Furthermore, the Court found that the somewhat sparse legislative history confirmed its reading of the scope of Congress’s authorization to the agency. Id. at 163-64, 102 S.Ct. at 3027-28. By way of contrast, in Louisiana Pub. Serv. Comm’n, the Court found congressional authorization for the agency’s action was not only lacking, but had been denied. Louisiana Pub. Serv. Comm’n, 476 U.S. at 374, 106 S.Ct. at 1901-02. In such circumstances, the Court “simply [could] not accept an argument that the [agency] may nevertheless take action which it thinks will best effectuate federal policy” because “[a]n agency may not confer power upon itself.” Id. The Court stated, “To permit an agency to expand its power in the face of a congressional limitation on its jurisdiction would be to grant to the agency power to override Congress. This we are both unwilling and unable to do.” Id. at 374-75, 102 S.Ct. at 1902. Furthermore, the Court rejected the argument that, in the face of a limitation on agency jurisdiction in the authorizing statute, agency preemption was saved by the agency’s assertion that it “cannot help but preempt state ... regulation ... if it is to fulfill its statutory obligation.” Id. at 375, 102 S.Ct. at 1902. The Court found that the statute instead contemplated dual regulation, because it established a mechanism for establishing “jurisdictional separation.” Id. c. Deference to agency determinations to preempt state law Courts have from time to time read into this agency preemption inquiry the same sort of deference accorded other agency interpretations, attempting to reconcile City of New York with Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). In Chevron, the Court held that if a statute is “silent or ambiguous with respect to the specific issue” in question, courts should accept “reasonable” administrative interpretations. Chevron, 467 U.S. at 843-44, 104 S.Ct. at 2782. Thus, Judge Kravitch of the Eleventh Circuit Court of Appeals recently wrote, There is ... one further twist to Chevron deference: it may not be obvious that this court’s obligation to defer to [an agency’s] interpretations of [the statute it is charged with implementing] attaches even when those interpretations address the scope of preemption of state law by federal regulation. I recognize that the law may be unsettled in general as to the application of Chevron to an agency’s determination of its own jurisdiction. See generally Cass R. Sunstein, Law and Administration After Chevron, 90 Colum.L.Rev. 2071, 2097-2101 (1990). Indeed, there is an inherent tension between Chevron deference, which only obtains where a statute is “silent or ambiguous,” Chevron, 467 U.S. at 843, 104 S.Ct. at 2782, and preemption doctrine, which maintains that state law will not be preempted unless that is “the clear and manifest purpose of Congress,” Rice, 331 U.S. at 230, 67 S.Ct. at 1152. So, to say that a court should defer to an agency’s determination that state law is preempted is seemingly paradoxical: the agency would command deference under Chevron only if the federal statute is ambiguous; but if the federal statute were ambiguous, then Congress’s intent to preempt seemingly would not be “clear and manifest.” Furthermore, although separation of powers (or institutional competence) concerns might counsel in favor of courts’ deferring to agencies in the resolution of ambiguous questions of statutory interpretation, countervailing federalism concerns offset this rationale for Chevron deference in preemption cases. Although federal agencies are more democratically accountable than courts, state legislatures are arguably yet more politically accountable. In the abstract, then, it is not at all clear that a state’s view that a federal statute does not preempt state law should give way to a federal agency’s view that the statute does preempt. Teper v. Miller, 82 F.3d 989, 997-98 (11th Cir.1996) (footnote omitted). Judge Kravitch found that City of New York pointed the way out of this conundrum: Fortunately, I need not completely untangle this knotty issue of jurisprudence in order to conclude that the [agency’s] interpretation [of the statute in question] is entitled to deference in this case. In City of New York v. FCC, a unanimous Court clarified the law sufficiently to settle the issue before us.... Teper, 82 F.3d at 998. The Eleventh Circuit Court of Appeals interpreted the portion of City of New York, quoted above, in which the Court cautioned that courts should not disturb an agency’s reasonable accommodation of conflicting policies unless that accommodation is not one that Congress would have sanctioned, to have the following import: An agency like the [Federal Election Commission (FEC) ], to which Congress has delegated broad discretion in interpreting and administering a complex federal regulatory regime, is entitled to significant latitude when acting within its statutory authority, even in its decisions as to the scope of preemption of state law. See also Fidelity Fed. Savings & Loan Ass’n v. de la Cuesta, 458 U.S. 141, 151-55, 102 S.Ct. 3014, 3022-23, 73 L.Ed.2d 664 (1982). But cf. Louisiana Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 106 S.Ct. 1890, 90 L.Ed.2d 369 (1986) (overturning agency preemption determination without mention of Chevron deference). In other words, even if a statute is on its face ambiguous, Congress’s intent to preempt may be blear when the administrative agency expressly responsible for interpreting and implementing the statute has clarified it. Teper, 82 F.3d at 998 (emphasis added). This court simply cannot agree with such a reading of City of New York, because it expands deference to the agency far beyond the express parameters stated in City of New York. Nor can the court agree with the analysis employed by the Seventh Circuit Court of Appeals in Time Warner, 66 F.3d at 876-82. Although the Seventh Circuit Court of Appeals initially stated the test of- agency preemption in terms of the two prongs of the City of New York inquiry as stated above, thereafter City of New York entirely disappears from that court’s analysis. Id. at 876. In its place, the court applied only Chevron deference to the FCC’s interpretation of its power to preempt state regulation of “negative option billing.” Id. Specifically, the court of appeals stated the decisive question as “whether the FCC reasonably concluded that it was authorized to undertake the preemption contained in its regulations.” Id. at 877. However, under City of New York, the proper question' is not whether an agency “reasonably concluded” it was authorized to undertake the preemption of state law by agency regulation, but “whether the [agency] is legally authorized to pre-empt state and local” law or regulation. City of New York, 486 U.S. at 66, 108 S.Ct. at 1643; see also de la Cuesta, 458 U.S. at 154, 102 S.Ct. at 3023 (question in the second prong of the analysis is “whether the agency possessed the power” to preempt state law, not whether it reasonably thought it had such power). In light of the silence of the Eighth Circuit Court of Appeals on the question of how courts must approach determinations of “agency” preemption and this court’s specific disagreement with recent decisions of other circuit courts of appeals, this court must explain how it reads City of New York on the question of deference to any agency’s determination of its power, to preempt state law. i. The City of New York analysis. This court finds that an attempt to reconcile City of New York with Chevron is simply misdirected, contra Teper, 82 F.3d at 998, and displacement of City of New York with a Chevron analysis is fundamentally flawed. Contra Time Warner Cable, 66 F.3d at 876. Instead, this court finds that City of New York suggests no deference as a matter of course in its two-prong analysis of agency preemption. In City of New York, and the cases upon which it relied, the Court made a searching inquiry to determine the agency’s intent to preempt that differed little, if at all, from the inquiry the Court employed to determine whether Congress had shown a “manifest” intent to preempt state law. For example, in City of New York, the court examined the language of the preemptive regulations and the rule-making process for those regulations. City of New York, 486 U.S. at 65, 108 S.Ct. at 1642-43; de la Cuesta, 458 U.S. at 154-58, 102 S.Ct. at 3022-25 (finding the FHLBB’s intent to preempt state banking regulation was “unambiguous” in light of the language of the agency’s regulations and the published rule-making commentaries of the agency); cf. Medtronic, Inc., — U.S. at-, 116 S.Ct. at 2252-53 (in a statutory preemption case, the Court examined the language of the statute, as well as its “basic purpose” and “legislative history.”). In City of New York, the Court specifically, examined the policy statement adopting the regulations as published by the agency at 50 Fed.Reg. 52464. City of New York, 486 U.S. at 65, 108 S.Ct. at 1643. The Court concluded, in light of the language of the regulations and their history, “In this case, there is no room for doubting that the [FCC] intended to pre-empt state technical standards governing the quality of cable television signals.” Id. (also stating that the FCC “has explicitly stated its intent to exercise exclusive authority in this area and to pre-empt state and local regulation”). The Court then scrutinized whether the FCC had the authority from Congress to preempt state and local regulation, reiterating that “ ‘an agency literally has no power to act, let alone pre-empt the validly enacted legislation of a sovereign State, unless and until Congress confers power upon it.’ ” Id. at 66, 108 S.Ct. at 1643 (quoting Louisiana Pub. Serv. Comm’n, 476 U.S. at 374, 106 S.Ct. at 1901). The Court found that Congress “sanctioned in relevant respects the regulatory scheme that the Commission had been following” for a decade by specifically mirroring the state of pre-existing regulatory law in the statute. Id. at 67, 108 S.Ct. at 1644. Instead of explicitly rejecting the FCC’s regulatory posture, the legislative history indicated “a straightforward endorsement” of that regulatory posture. Id. at 68, 108 S.Ct. at 1644. Although the Court upheld the agency’s determination to preempt state law, nowhere in the course of its actual analysis of the agency preemption issue did the Court suggest that it should simply defer to the agency’s determination until it considered the FCC’s findings pertaining to policy questions. Id. at 69, 108 S.Ct. at 1644-45, Nowhere else in its analysis of whether the agency had the authority to preempt state law did the Court examine what the agency thought was the scope of its authority or examine the agency’s interpretation of congressional statements. Deference to agency determinations only arose when the Court addressed the FCC’s “explicit findings, based on considerable experience in this area, that complementary or additional technical standards set by state and local authorities do conflict with the basic objectives of federal policy with respect to cable television.” Id. The Court found that arguments that local standards did not conflict with federal regulatory standards should be discounted, because the argument was contrary to the agency’s determination on policy grounds. Id. The Court’s complete analysis, including its determination that the policy matters at issue had been committed to the agency, led the Court to conclude that there was nothing in the statute to suggest that the agency’s decision to preempt local standards was “‘not one that Congress would have sanctioned.’ ” Id. (quoting Shimer, 367 U.S. at 383, 81 S.Ct. at 1560). This application of the two-prong analysis is in keeping with the language the Court used in describing the nature of the inquiry. “[I]n proper circumstances,” the Court said, “the agency may determine that its authority is exclusive and pre-empts any state efforts to regulate in the forbidden area.” Id. at 64, 108 S.Ct. at 1642. What the Eleventh Circuit Court of Appeals and other courts apparently missed, however, is that the Court then explained what those “proper circumstances” are. The Court identified those “proper circumstances” as circumstances that “involve a broad grant of authority to reconcile conflicting policies.” Id. Only where this is true does the Court accord the agency any deference in its determination of its power to preempt state law: “Where this is true, the Court has cautioned that even in the area of pre-emption, if the agency’s choice to pre-empt ‘represents a reasonable accommodation of conflicting policies that were committed to the agency’s care by the statute, we should not disturb it unless it appears from the statute or its legislative history that the accommodation is not one that Congress would have sanctioned.’ ” Id. (quoting Shimer, 367 U.S. at 383, 81 S.Ct. at 1560). However, even in this narrow zone of deference, the Court’s choice of language demonstrates that the agency’s decision must still be found to accord with congressional intent to be sustained. Id. Thus, under this court’s reading of City of New York, deference to an agency’s determination to preempt state law arises only in very narrow circumstances; specifically, it arises only where (1) Congress confers on the agency “a broad grant of authority to reconcile conflicting policies,” and (2) the agency’s choice to preempt “represents a reasonable accommodation of conflicting 'policies that were committed to the agency’s care by the statute.” See City of New York, 486 U.S. at 64, 108 S.Ct. at 1642 (emphasis added). When both of these conditions have been met, and only then, should the court refrain from disturbing the agency’s reasonable determination. Id. However, it appears from the Court’s language that even an agency’s reasonable determination of preemption ma