Full opinion text
CALABRESI, Circuit Judge: These consolidated appeals arise from a long-standing tax dispute between the City of New York (“the City”) and certain foreign sovereigns who operate missions to the United Nations in the City. For years, the City has assessed property taxes against these missions, maintaining that while those parts of embassy buildings that are used for diplomatic offices are exempt from property taxation under international and state law, other parts of the buildings — those that are used as residences for employees and their families — are not exempt. Appellants, the Permanent Mission of India to the United Nations (the “India Mission”) and the Principal Resident Representative of the Mongolian People’s Republic to the United Nations (the “Mongolia Mission”) — collectively “the Missions” — have resisted paying any property taxes to the City. They contend that their entire embassy buildings are tax exempt. This dispute, and the litigation it engendered, ultimately prompted the United States Department of State (“Department of State” or “State Department”) to act. In June 2009, the State Department issued a notice pursuant to its authority under the Foreign Missions Act, 22 U.S.C. § 4301 et seq., establishing an exemption from real property taxes on property owned by foreign governments and used to house the staff of permanent missions to the United Nations or the Organization of American States or of consular posts. See Designation and Determination under the Foreign Missions Act (the “State Department Notice” or the “Notice”), 74 Fed. Reg. 31,788 (July 2, 2009). The Notice stated that this exemption would preempt inconsistent State and local laws and also that it would apply retroactively to taxes that had been previously assessed against the designated property. Id. We are now called upon to determine whether the action taken by the State Department was within its statutory authority. We conclude that it was. Specifically, we hold that the Foreign Missions Act (“FMA”) permits the State Department to designate affirmative benefits such as tax exemptions and that the Act allows the State Department to make- such tax exemptions preemptive of State and municipal tax laws. We also hold that, under the circumstances of this case, the State Department acted within its power in designating this benefit as effective retroactively. Finally, we conclude that the Notice issued by the State Department was procedurally proper because it falls within the “foreign affairs function” exception to notice and comment under the Administrative Procedure Act, 5 U.S.C. § 553(a)(1). BACKGROUND I. The India Mission is housed in a twenty-six story building, located at 235 East 43rd Street, New York, N.Y., and owned by the government of the Republic of India. The first six floors of the building, as well as the basement and the cellar, are used for diplomatic offices. The remaining floors are dedicated to rent-free residential space for security personnel, a driver, and the diplomats of the Mission and of India’s consulate in New York (the offices of which are located elsewhere in the City). All of these employees rank below the head of the Mission, whose residence is not on site. The Mongolian Mission is housed in a multi-story building at 6 East 77th Street in New York City that is owned by the People’s Republic of Mongolia. The first two floors are used for the Mission’s offices. The third floor is used for the Ambassador’s apartment. The top two floors are used as rent-free apartments for other employees of the Mission. The City has consistently taken the position that mission property used for the residences of lower-level employees is subject to taxation, and it has been levying taxes on such properties for years. Both the India Mission and the Mongolia Mission have argued that these residences are exempt from taxation under international and New York law because the residences are used for the purposes of the mission/consulate. They have therefore refused to pay any property taxes to the City. By operation of New York law, the unpaid taxes converted into tax liens held by the City against the relevant properties. II. A. In April 2003, the City filed separate complaints against several foreign missions in New York state court. Pursuant to 28 U.S.C. § 1441(d), the Missions removed the cases to the United States District Court for the Southern District of New York. In its amended complaints, the City sought judgments for unpaid property taxes (and other unpaid charges) plus interest. The City also sought declaratory judgments to establish the validity of its tax liens against these missions. After limited jurisdictional discovery, the India Mission and the Mongolia Mission moved to dismiss, contending that, pursuant to the Foreign Sovereign Immunity Act (“FSIA”), 28 U.S.C. § 1604, the District Court lacked subject matter jurisdiction. The District Court denied the motion. It concluded that under the FSIA’s “immovable-property” exception- — -which provides that “[a] foreign state shall not be immune from jurisdiction ... in any case ... in which rights in ... immovable property situated in the United States are in issue,” 28 U.S.C. § 1605(a)(4) — the court had jurisdiction to adjudicate the validity of the City’s tax liens. See City of N.Y. v. Permanent Mission of India to the U.N. (“Permanent Mission I”), 376 F.Supp.2d 429, 439 (S.D.N.Y.2005). The Missions filed an interlocutory appeal that was limited exclusively to the jurisdictional issue. We affirmed the judgment of the District Court, holding that the immovable property exception to foreign sovereign immunity provided jurisdiction over the matter because what was in dispute was “the extent of defendants’ obligations under local law (here, property taxes) arising directly out of ownership of real property in the United States.” See City of N.Y. v. Permanent Mission of India to the U.N., 446 F.3d 365, 376 (2d Cir.2006). The Supreme Court granted certiorari, 549 U.S. 1177, 127 S.Ct. 1144, 166 L.Ed.2d 910, and affirmed. Permanent Mission of India to the U.N. v. City of N.Y., 551 U.S. 193, 127 S.Ct. 2352, 168 L.Ed.2d 85 (2007). B. The cases were then remanded to the District Court for proceedings on the merits. The parties cross-moved for summary judgment on the question of whether the parts of the properties used by India and Mongolia to house their staff were subject to real estate taxation. The District Court held that they were. See City of N.Y. v. Permanent Mission of India to the U.N. (“Permanent Mission II”), 533 F.Supp.2d 457, 460 (S.D.N.Y.2008). The District Court first addressed the Missions’ claimed tax exemption under the applicable Vienna Conventions: a) Article 32 of the Vienna Convention on Consular Relations, (“VCCR”), Apr. 24, 1963, 21 U.S.T. 77, (ratified 1969), for the portions of the premises that house consular staff and b) Article 23 of the Vienna Convention on Diplomatic Relations (“VCDR”), Apr. 18, 1961, 23 U.S.T. 3227, (ratified 1972), for the portions of the premises that house the U.N. Missions. Under the VCCR, [c]onsular premises and the residence of the career head of consular post of which the sending State or any person acting on its behalf is the owner or lessee shall be exempt from all national, regional or municipal dues and taxes whatsoever, other than such as represent payment for specific services rendered. VCCR art. 32. “[Cjonsular premises” are defined in the VCCR as “the buildings or parts of buildings and the land ancillary thereto ... used exclusively for the purposes of the consular post.” Id. art. l(j). As the District Court explained, the VCDR “reaches the same result as the VCCR but through a slightly more circuitous route.” Permanent Mission II, 533 F.Supp.2d at 461. Article 1 of the VCDR defines “premises of the mission” to comprise: the buildings or parts of buildings and the land ancillary thereto, irrespective of ownership, used for the purposes of the mission including the residence of the head of the mission. VCDR art. l(i). Article 23, in turn, provides: The sending State and the head of the mission shall be exempt from all national, regional or municipal dues and taxes in respect of the premises of the mission, whether owned or leased, other than such as represent payment for specific services rendered. VCDR art. 23. The District Court held that “the plain language of the VCCR and the VCDR unequivocally supports the City’s position” that the portions of the missions used to house employees and their families are not tax exempt. Permanent Mission II, 533 F.Supp.2d at 461. The Court reasoned that both the VCCR and VCDR limited tax exemptions to the actual office space of the consular or mission premises and to the residence of the head of the mission or consular post. The District Court observed that the VCCR “distinguishes for tax purposes between ‘consular premises’ and ‘residence,’ ” which led the Court to conclude that the provision “limits the tax exemption respecting residence to ‘the residence of the career head of consular post’ and none other.” Id. at 460-61. Similarly, with respect to the VCDR, the District Court found that the two provisions quoted above, “when taken together, make plain that the residential exemption from taxes is limited to ‘residence of the head of the mission,’ and not to others.” Id. at 461. The District Court then rejected the Missions’ remaining arguments, including their contention that disputed portions of the missions were exempt from taxation under customary international law. See id. at 461-62. Accordingly, the District Court granted the City’s motion for summary judgment, thereby validating its tax hens and its assessment of taxes with interest against India and Mongolia. See id. at 470. The Court asked the parties to submit letters regarding the amounts due to the City. In a subsequent order, the District Court rejected all of the Missions’ objections to the City’s calculations, including their general objection that the interest rates imposed by the City were “exorbitant.” See City of N.Y. v. Permanent Mission of India to the U.N. (“Permanent Mission III”), 538 F.Supp.2d 701, 703 (S.D.N.Y.2008). Judgment was therefore entered against the India Mission in the amount of $42,451,769.35 and against the Mongolia Mission in the amount of $4,395,003.13. Id. at 704. Both the India Mission and the Mongolia Mission filed notices of appeal. III. On June 23, 2009, while this appeal was pending, the Department of State issued a notice entitled Designation and Determination under the Foreign Missions Act, 74 Fed.Reg. 31,788. Invoking its authority under the FMA, the State Department “designate[d][an] exemption from real property taxes on property owned by foreign governments and used to house staff of permanent missions to the United Nations or the Organization of American States or of consular posts as a benefit for purposes of the Foreign Missions Act.” Id. (emphasis added). The Notice further explained that the exemption “shall be provided to such foreign missions on such terms and conditions as may be approved by the Office of Foreign Missions and that any state or local laws to the contrary are hereby preempted.” Id. (emphasis added). The Notice stated that the action taken was “in accord with the tax treatment of foreign government-owned property in the United States used as residences for staff of bilateral diplomatic missions and conforms to the general practice abroad of exempting government-owned property used for bilateral or multilateral diplomatic and consular mission housing.” Id. (citation omitted). The State Department explained its action as follows: This action is necessary to facilitate relations between the United States and foreign states, to protect the interests of the United States, to allow for a more cost effective approach to obtaining benefits for U.S. missions abroad, and to assist in resolving a dispute affecting U.S. interests and involving foreign governments which assert that international law requires the exemption from taxation of such diplomatic and consular properties. The dispute has become a major irritant in the United States’ bilateral relations and threatens to cost the United States hundreds of millions of dollars in reciprocal taxation. As the largest foreign-government property owner overseas, the United States benefits financially much more than other countries from an international practice exempting staff residences from real property taxes, and it stands to lose the most if the practice is undermined. Responsive measures taken against the United States because of the dispute also have impeded significantly the State Department’s ability to implement urgent and eongressionally mandated security improvements to our Nation’s diplomatic and consular facilities abroad, imposing unacceptable risks to the personnel working in those facilities. This action will allow the United States to press forward with improvements that will protect those who represent the Nation’s interests abroad. Id. The State Department explicitly addressed the Notice’s intended retroactive effect, asserting that the exemption from real property taxes provided by this designation and determination shall apply to taxes that have been or will be assessed against any foreign government with respect to property subject to this determination, and shall operate to nullify any existing tax liens with respect to such property, but shall not operate to require refund of any taxes previously paid by any foreign government regarding such property. Id. (emphasis added). Finally, the State Department indicated that the actions taken in the Notice “are not exclusive and are independent of alternative legal grounds that support ... tax exemption.” Id. We granted the Government’s motion to submit out of time an amicus brief formally apprising the Court of the Notice and discussing its legal implications. We then gave the parties an opportunity to respond, and allowed the Government to file a supplemental amicus brief to reply to the City’s arguments. The two cases were argued together, and we have now consolidated them for disposition. DISCUSSION The State Department Notice squarely applies to the tax dispute at issue in this case. The Notice (1) provides that, as a benefit under the FMA., “property owned by foreign governments and used to house staff of permanent missions ... or of consular posts” is exempt from real property taxation; (2) states that “any state or local laws to the contrary,” such as those of New York City, are preempted; and (3) expressly states that the tax exemption is to apply retroactively to taxes that have previously been assessed and “shall operate to nullify any existing tax liens” with respect to the affected property. 74 Fed. Reg. 31,788 (emphasis added). Therefore, if the State Department’s issuance of the Notice was procedurally proper, and if the actions taken in the Notice are within the Secretary’s lawful authority under the FMA, then the Notice is dispositive of this case and requires that we find in favor of the Missions irrespective of whether the Missions are also entitled to immunity from taxation under either international or state law. After outlining the relevant provisions of the FMA, we address the issue of whether the Notice establishing the tax exemption as a “benefit” is lawful as applied prospectively. We then consider whether it was within the State Department’s authority to designate such a benefit to be effective retroactively. Finally, we address whether the Notice was procedurally proper, given that it was promulgated without notice and comment. I. The FMA was enacted in 1982 to “support the secure and efficient operation of United States missions abroad, to facilitate the secure and efficient operation in the United States of foreign missions ..., and to assist in obtaining appropriate benefits, privileges, and immunities for those missions and organizations and to require their observance of corresponding obligations in accordance with international law.” 22 U.S.C. § 4301(b). The Act’s legislative history indicates that Congress was troubled by the fact that “an increasing number of countries” denied United States missions suitable locations or long-term rights to property or facilities, resulting in increased costs and diminished security and effectiveness. See S.Rep. No. 97-283, at 2 (1981). The Act was designed to address this “serious and growing imbalance between the treatment accorded in many countries to official missions of the United States [ ] and that made available to foreign government missions in the United States.” Id. at 1. Congress sought to accomplish this by creating “a statutory scheme that vests broad discretion in the Secretary of State to exercise authority over foreign missions in light of [relevant] foreign policy considerations and concerns.” Republic of Benin v. Mezei, 483 F.Supp.2d 312, 320 (S.D.N.Y.2007). To this end, the Act specifies that the “treatment to be accorded to a foreign mission in the United States shall be determined by the Secretary [of State] after due consideration of the benefits, privileges, and immunities provided to missions of the United States in the country or territory represented by that foreign mission .... ” 22 U.S.C. § 4301(c). The term “benefit” — whose meaning is central to the State Department’s Notice and the City’s challenge to it — is defined under section 4302(a) to mean: any acquisition, or authorization for an acquisition, in the United States by or for a foreign mission, including the acquisition of — (A) real property ..., (B) public services ..., (C) supplies, maintenance, and transportation, (D) locally engaged staff ..., (E) travel and related services, (F) protective services, and (G) financial and currency exchange services, and includes such other benefits as the Secretary may designate. § 4302(a)(1) (emphasis added). Section 4302(b) directs that determinations “with respect to the meaning and applicability” of terms listed in section 4302(a) — -including “benefit” — are “committed to the discretion of the Secretary.” The legislative history indicates that this provision was included to “avoid conflicting interpretations by different government agencies and courts and potential litigation that might detract from the efficient implementation of [the FMA] or might adversely affect the management of foreign affairs.” S.Rep. No. 97-283, at 7 (1981). Section 4303 specifies the functions to be carried out by the Secretary. They include, inter alia, “[a]ssist[ing] agencies of Federal, State, and municipal government with regard to ascertaining and according benefits, privileges, and immunities to which a foreign mission may be entitled,” and “[p]rovid[ing] or assisting] in the provision of benefits for or on behalf of a foreign mission in accordance with section 4304 of [the Act].” 22 U.S.C. § 4303(l)-(2). Section 4304 governs the “[provision of benefits.” Pursuant to it, the Secretary may provide benefits, subject to any terms and conditions that she specifies, either “[u]pon the request of a foreign mission,” § 4304(a), or when the Secretary “determines that such action is reasonably necessary on the basis of reciprocity or otherwise” to help meet certain foreign policy goals including: (1) to facilitate relations between the United States and a sending State, (2) to protect the interests of the United States, (3) to adjust for costs and procedures of obtaining benefits for missions of the United States abroad, (4) to assist in resolving a dispute affecting United States interests and involving a foreign mission or sending State, or (5) ... to implement an exchange of property between the Government of the United States and the government of a foreign country.... Id. at § 4304(b)(1) — (5). If the Secretary determines that action is necessary, then she “may require a foreign mission (A) to obtain benefits from or through the Secretary on such terms and conditions as the Secretary may approve, or (B) to forego the acceptance, use, or relation of any benefit or to comply with such terms and conditions as the Secretary may determine .... ” Id. at § 4304(b). The FMA includes a section that addresses preemption. That section provides in full: Notwithstanding any other law, no act of any Federal agency shall be effective to confer or deny any benefit with respect to any foreign mission contrary to this chapter. Nothing in section 4302; 4303, 4304, or 4305[addressing the property of foreign missions] of this title may be construed to preempt any State or municipal law or governmental authority regarding zoning, land use, health, safety, or welfare, except that a denial by the Secretary involving a benefit for a foreign mission within the jurisdiction of a particular State or local government shall be controlling. Id. at § 4307 (emphasis added). Section 4308 sets forth general provisions for the regulation of foreign missions. Relevant among them, section 4308(a) provides the Secretary with the authority to issue regulations to carry out the policy of the FMA, and section 4308(g) establishes that “[e]xcept as otherwise provided, any determination required under [the FMA] shall be committed to the discretion of the Secretary.” II. A. When Congress expressly confers to an agency interpretive authority over a statute that the agency is administering, our review of the agency’s interpretation is limited and deferential. See United States v. Mead Corp., 533 U.S. 218, 226-27, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001); McNamee v. Dep’t of the Treasury, 488 F.3d 100, 105 (2d Cir.2007). We give a policy determination made by an agency pursuant to its explicitly delegated authority “controlling weight unless it is ‘arbitrary, capricious, or manifestly contrary to the statute.’ ” ABF Freight Sys., Inc. v. NLRB, 510 U.S. 317, 324, 114 S.Ct. 835, 127 L.Ed.2d 152 (1994) (quoting Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 844, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)). Our deference is especially substantial with respect to the State Department’s administration of its delegated responsibilities under the FMA because the Act deals with an area “bound up with security concerns and issues of reciprocity among nations.” Sheridan Kalorama Historical Ass’n v. Christopher, 49 F.3d 750, 756 (D.C.Cir.1995). We recognize that the State Department is best positioned a) to assess the impact laws and policies like the City’s have on the effective functioning of foreign missions in the United States, and b) to consider the collateral consequences those laws and policies will have on the interests of the United States missions abroad. Limited review does not, however, mean no review. Though the FMA vests interpretive discretion in the Secretary over certain terms like “benefit,” it remains incumbent upon us as a court to determine whether the Notice exceeds the State Department’s statutory authority. See Schweiker v. Gray Panthers, 453 U.S. 34, 44, 101 S.Ct. 2633, 69 L.Ed.2d 460 (1981) (indicating that courts do “not abdicate review” in the context of an express delegation of substantive authority, but instead follow the limited task of ensuring that the Secretary did not exceed her delegated authority or issue a regulation that is arbitrary or capricious); Palestine Info. Office v. Shultz, 853 F.2d 932, 934 (D.C.Cir.1988) (explaining that judicial review of executive action under the FMA is “confined to determining that the Secretary acted in conformity with the provisions of the [statute]”). B. The first question we must answer, therefore, is whether the FMA authorizes the State Department to designate property tax exemptions for mission and consular staff residences as “benefits.” The Government, whose position Appellants adopt, argues that the Notice falls within the expansive authority granted in the FMA to the State Department. The City argues that it does not, and contends that exemptions from generally applicable local laws, including tax laws, are not within the permissible scope of the statutory term “benefit.” The City maintains that “benefit” is used in a technical, narrow, and somewhat counter-intuitive sense in the FMA. According to the City, the FMA authorizes the State Department to designate goods and services as benefits only for the purpose of imposing reciprocal restrictions, and not for the purpose of “awarding] favors to foreign missions by relieving them of their local law obligations.” Appellee Resp. Br. to Amicus Curiae 20. On this view, benefits are limited to acquisitions of existing real property, and other goods, and services that are readily available to the general public. The City argues that when the State Department designates such items as “benefits” for a foreign mission, the action serves as a potential sanction because the designation gives the State Department authority, under section 4304, to impose restrictions on otherwise freely-available items as a way to reciprocate for restrictions imposed on United States missions abroad. The City bases its argument on the text and structure of the FMA, as well as on the asserted broader purpose of the legislation, which according to the City is embodied both in the statute’s legislative history and in the manner in which it has subsequently been implemented by the State Department. 1. We begin our interpretation of a federal statute with the statutory text. See United States v. Hasan, 586 F.3d 161, 166 (2d Cir.2009). Section 4302(a) defines “benefit” as follows: It first provides that “benefit” means “any acquisition, or authorization for an acquisition,” of a variety of thereafter enumerated goods and services. 22 U.S.C. § 4302(a)(l)(A)~(G). Then, in a phrase set-off from aforementioned list of examples, it states that “benefit” also “includes such other benefits as the Secretary may designate,” id. § 4302(a)(1). The State Department relies on the second part of this definition for the authority to designate as a benefit the tax exemption for mission and consular residences. We agree that the broad and open-ended language of the second part of this definition empowers the State Department to grant positive benefits, such as property tax exemptions. Nothing in 22 U.S.C. § 4302(a)(1) limits the category of “other benefits” in the second part of the definition to the enumerated list of “acquisition[s]” in the first-part. To the contrary, the illustrations used in the definition are explicitly non-exclusive, and the second part of the definition is best read as authorizing the State Department to designate additional benefits that are consistent with the FMA’s general purposes. Such a delegation is unexceptional in a statute that confers discretionary authority to an executive department to manage foreign affairs. See Zemel v. Rusk, 381 U.S. 1, 17, 85 S.Ct. 1271, 14 L.Ed.2d 179 (1965) (“Congress — in giving the Executive authority over matters of foreign affairs— must of necessity paint with a brush broader than that it customarily wields in domestic areas.”). And though this delegation is broad, it is not unguided. Section 4301(c), for instance, directs that the treatment of a foreign mission “shall be determined ... after due consideration of the benefits, privileges, and immunities provided to missions of the United States in the country or territory represented by that foreign mission, as well as matters relating to the protection of the interests of the United States.” In addition, section 4304 sets forth the grounds on which the Secretary should rely in deciding whether to provide benefits and whether to set terms and conditions on their use. Indeed, in the Notice, the State Department expressly referenced the statutory objectives identified in sections 4301 and 4304 of the FMA as the basis for its benefit designation. See 74 Fed.Reg. 31,788 (“This action is necessary to facilitate relations between the United States and foreign states, to protect the interests of the United States, to allow for a more cost effective approach to obtaining benefits for U.S. missions abroad, and to assist in resolving a dispute affecting U.S. interests and involving foreign governments which assert that international law requires the exemption from taxation of such diplomatic and consular properties.”). In an attempt to resist this understanding of “benefit,” the City invokes the principle of ejusdem generis. Ejusdem generis is a textual canon of statutory interpretation that instructs courts to interpret a general term in a statute that follows a list of more specific terms “to embrace only objects of the same kind or class as the specific ones.” United States v. Amato, 540 F.3d 153, 160 (2d Cir.2008). The City acknowledges, as it must, that the first part of the definition of “benefit” in section 4302(a)(l)(A)-(G) is illustrative rather than exhaustive, but it urges that the illustration serves to restrict the scope of the second part of the definition that gives the Secretary authority to designate “other benefits.” According to the City, the common category established by the list in section 4302(a)(l)(A)-(G), consists of “acquisitions of existing real property, goods, and services” that are “readily available to the public for lawful acquisition.” Appellee Resp. Br. to Amicus Curiae 27. This restriction of the general term “other benefits” to “items readily available to the public for lawful acquisition” fits with the City’s view of the FMA as authorizing the State Department to designate benefits exclusively for the purpose of imposing sanctions by restricting access to generally-available items. It also necessarily would exclude tax exemptions from the permissible scope of the term because exemptions, by definition, are not generally available to the public, and their recognition as a benefit is a favor to foreign missions, not a sanction. We find the City’s textual argument unconvincing. The principle of ejusdem generis is “no more than an aid to construction” that “comes into play only when there is some uncertainty as to the meaning of a particular clause in a statute.” See United States v. Turkette, 452 U.S. 576, 581, 101 S.Ct. 2524, 69 L.Ed.2d 246 (1981). It does not “warrant confining the operations of a statute within narrower limits than were intended.” United States v. Kennedy, 233 F.3d 157, 161 n. 4 (2d Cir.2000) (internal quotation marks omitted). Adopting the City’s argument would have precisely the effect of imposing limitations on statutory language that is purposefully broad. The dictionary definition of “benefit” — “something that ... promotes well-being” or a “useful aid,” Webster’s Third New International Dictionary of the English Language Unabridged 204 (1992) — is much more expansive than the City’s formulation. Statutory language, of course, “has meaning only in context,” Graham Cnty. Soil & Water Conservation Dist. v. United States ex rel. Wilson, - U.S. -, 130 S.Ct. 1396, 1404, 176 L.Ed.2d 225 (2010) (internal quotation marks omitted), and so it is possible that Congress may use a general word in a sense that is more technical and limited than its standard definition, see E. Norman Peterson Marital Trust v. C.I.R., 78 F.3d 795, 796-97 (2d Cir.1996). But there is no contextual basis for adopting a narrower than normal meaning here. And we are especially reluctant to use the principle of ejusdem generis to narrow the interpretation of “benefit” under the FMA. For doing so would risk reading judicial limits into a term Congress seems deliberately to have sought to leave open-ended in order to give the State Department flexibility in an area where flexibility is particularly desirable. To the extent that some uncertainty about the scope of the term benefit exists, we are, therefore, guided first and foremost by the FMA’s allocation of interpretive authority rather than by textual canons. See 22 U.S.C. § 4302(b) (“Determinations with respect to the meaning and applicability of the term[] [benefit] shall be committed to the discretion of the Secretary.”). Moreover, and even apart from considerations of deference, we doubt that ejusdem generis is relevant to this particular statutory provision. As we previously explained, we read the “other benefits” part of the definition for “benefits” as structurally separate from the enumeration in § 4302(a)(A)-(G). It follows that we do not regard “other benefits” as a general term that necessarily embraces the same object as the specific benefits identified; the second part of the definition is a delegation, not merely a “catch-all.” See Turkette, 452 U.S. at 582, 101 S.Ct. 2524 (explaining that where a statutory provision establishes two separate categories, and the second category does not itself contain a specific enumeration followed by a general description, “ejusdem generis has no bearing on the meaning to be attributed to” the second category). This conclusion is reinforced when we consider the category to which the City seeks to limit the term “benefits.” While the specifically enumerated benefits in section 4302(a)(A)-(G) all plausibly fit within the category of generally-available items to which the State Department may restrict access in order impose sanctions, the FMA as a whole manifestly also contemplates benefits that do not fit within this limitation. Section 4303, for example, declares that the Secretary shall “[pjrovide or as sist in the provision of benefits for or on behalf of a foreign mission in accordance with section 4304.” 22 U.S.C. § 4303(2) (emphasis added). And the City fails to explain why the FMA would use words like “[p]rovide” and “assist” if benefits are confined to generally available items upon which the Secretary may only place restrictions or conditions. Additionally, section 4304(a) of the Act permits the Secretary to provide benefits to or for a foreign mission, “[u]pon the request of [that] foreign mission.” If a benefit is always a generally available item, the designation of which is meant to be used as a sanction, it is hard to understand why a foreign mission might request benefits. 2. We next consider the City’s argument that the FMA’s purpose and history indicate that Congress intended to establish a limited and technical meaning of “benefit” that the Notice in this case contravened. A review of the legislative history of the FMA suggests that the City correctly characterizes the primary mischief that Congress intended to address in the statute: the imposition of restrictions and burdens on U.S. missions overseas and the State Department’s inability to respond with targeted and proportionate measures. Congress documented several examples of what it considered unfair treatment by foreign -governments that impaired the ability of U.S. missions to purchase property abroad and to obtain facilities and services. Congress also recognized that, at the time, the State Department did not have the legal tools to respond to such treatment because it “lack[ed] authority to impose similar restrictions or conditions on ... other countries in the United States” and was instead forced, if it was to act all, to “take far more extreme action such as barring the country from using property ... or declaring some persons persona non grata.” S.Rep. No. 97-283, at 3 (1981). These extreme remedies were not generally “suitable,” Congress explained, and so they were “rarely used.” Id. By contrast, the FMA provided “mechanisms whereby the operations of foreign missions in the United States and the benefits available to them from Federal, State and local authorities, public utilities, and private persons may be cleared through the Federal Government and adjusted according to United States needs” so that “the conditions under which foreign missions operate in the United States can be made to reflect the conditions under which missions of the United States are required to operate in the countries represented by such foreign missions.” Id. at 1-2. In other words, the FMA allowed the State Department “to make the punishment fit the crime.” H.R Rep. No. 97-102, Pt. 1, at 27 (1981) (internal quotation marks omitted). We reject, however, the City’s invitation to treat evidence that Congress passed the FMA in part to create a reciprocal-sanctions regime as proof that Congress intended to limit the State Department’s authority to designate benefits to this function only. First, we find no evidence that Congress sought to proscribe the State Department from using benefits as “carrots” rather than as “sticks” in instances where the State Department believed that doing so would best advance the national interest and improve treatment for United States missions abroad. The State Department made just such a judgment in this case. The Notice a) describes how the tax treatment foreign missions have received in the United States has led to adverse “[rjesponsive measures taken against the United States” and b) explains why, if the United States were to pursue reciprocal retaliation rather than confer a positive benefit, it would likely leave the United States worse off. See 74 Fed.Reg. 31,788 (“As the largest foreign-government property owner overseas, the United States benefits financially much more than other countries from an-international practice exempting staff residences from real property taxes, and it stands to lose the most if the practice is undermined.”). Of course, just because a certain diplomatic tool is desirable does not mean that Congress has authorized it. But in the context of a statute in which Congress has “expressed a clear intention that the executive branch’s authority ... be broad,” Palestine Info. Office, 853 F.2d at 938, and in which Congress gave interpretive authority to the State Department to “avoid conflicting interpretations by ... courts,” S.Rep. No. 97-283, at 7 (1981), it would be improper to read Congress’s focus on the use of benefits as restrictions to exclude, implicitly, such other perfectly ordinary uses of “benefits.” Second, the legislative history suggests that in addition to providing the State Department with new authority to respond to the treatment of United States missions abroad, the FMA also had the purpose of giving the State Department the ability “to assist foreign missions, at their request, to obtain benefits” in order to “enhance the ability of foreign missions to conduct their representational duties in the United States.” S.Rep. No. 97-283, at 8 (1981); accord H.R.Rep. No. 97-102, Part 1, at 31 (1981). This additional purpose, which is reflected in statute’s statement of policy in section 4301(b), clearly contemplates the granting of affirmative benefits by the State Department. Apart from the legislative history, the City also seeks to rely on the FMA’s post-enactment regulatory history as providing support for its interpretation. The City contends that while the State Department has previously used the FMA. to impose restrictions on specific foreign missions by placing conditions on their acquisition of property, goods or services, the Department has not historically attempted to use its authority under domestic law to grant legal exemptions. The fact that the FMA can be used (and indeed has been used) to impose reciprocal sanctions does not, however, limit the State Department’s authority to designate benefits in other ways that are also consistent with the statute. And in the context of a statute that was designed to facilitate flexibility, we do not believe that the supposed novelty of this benefit designation makes such a designation suspect. We therefore conclude that the FMA empowers the State Department to grant positive benefits, as well as to place restrictions on existing benefits. C. That the State Department is authorized to confer tax exemptions as “benefits” to foreign missions does not necessarily mean, however, that such benefits preempt State and local tax laws. Accordingly, we turn now to the question of the preemptive effect of the State Department Notice. A federal agency “may preempt state regulation and hence render unenforceable state or local laws that are otherwise not inconsistent with federal law” provided the agency is “acting within the scope of its congressionally delegated authority.” City of N.Y. v. FCC, 486 U.S. 57, 63-64, 108 S.Ct. 1637, 100 L.Ed.2d 48 (1988) (internal quotation marks omitted); see also SPGGC, LLC v. Blumenthal, 505 F.3d 183, 188 (2d Cir.2007) (“Federal regu lations have no less preemptive effect than federal statutes.” (quoting Fid. Fed. Sav. & Loan Ass’n v. de la Cuesta, 458 U.S. 141, 153, 102 S.Ct. 3014, 73 L.Ed.2d 664 (1982))). But “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.” La. Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 374, 106 S.Ct. 1890, 90 L.Ed.2d 369 (1986). In determining whether the Notice preempts the City’s property tax laws, we must therefore answer two questions: (1) whether the action taken by the State Department in the Notice was intended to preempt the City’s property tax laws, and if so (2) whether the State Department acted within the scope of its delegated authority in preempting those laws. See Drake v. Lab. Corp. of Am. Holdings, 458 F.3d 48, 56 (2d Cir.2006). The answer to the first question is not in doubt: The State Department expressly addressed the preemptive effect of the Notice, and provided that “any state or local laws to the contrary [of the Notice’s benefit designation] are hereby preempted.” 74 Fed.Reg. 31,788. And even aside from that explicit assertion, it is clear that the City’s property taxes cannot coexist with the State Department’s Notice, and so, if the latter is valid, it must prevail. See Blum v. Bacon, 457 U.S. 132, 145-46, 102 S.Ct. 2355, 72 L.Ed.2d 728 (1982); see also Wyeth v. Levine, — U.S. -, 129 S.Ct. 1187, 1200-01, 173 L.Ed.2d 51 (2009) (recognizing that an agency regulation with the force of law can preempt conflicting state requirements when the court determines that there is a conflict). We also answer the second question in the affirmative. The State Department acted within its statutory authority in recognizing a property tax exemption as a benefit that has the effect of preempting the City’s inconsistent tax laws. In reaching this conclusion, we reject the City’s contention that section 4307 — which provides that nothing in the FMA “may be construed to preempt any State or municipal law or governmental authority regard ing zoning, land use, health, safety, or welfare, except that a denial by the Secretary involving a benefit for a foreign mission within the jurisdiction of a particular State or local government shall be controlling,” 22 U.S.C. § 4307 — precludes the State Department from granting a benefit that affirmatively displaces State or local tax laws. The problem with the City’s argument is apparent from the text of section 4307 emphasized above. Section 4307 does not bar the State Department from providing benefits that contravene all local laws. Rather, by its terms it specifically shields only those State or local laws “regarding zoning, land use, health, safety, or welfare. ” The section is tellingly silent with regard to State and local tax laws. Attempting to resist this textual implication, the City argues that the section implicitly forbids any preemption that it does not explicitly authorize. That is, according to the City, the provision allows the State Department to exercise “negative preemption” by issuing “controlling” denials of benefits that trump contrary zoning, land use, health, safety, or welfare laws that would normally make such benefits available, 22 U.S.C. § 4307, but it does not otherwise allow the State Department to displace State or local law. The City’s argument for this interpretation relies primarily on its view of the legislative history of section 4307, as well as on background norms of interpretation that establish a presumption against preemption when Congress authorizes regulatory action in an area that the States have traditionally occupied, see Altria Group, Inc. v. Good, — U.S. -, 129 S.Ct. 538, 543, 172 L.Ed.2d 398 (2008). With respect to the presumption against preemption, we can readily assume the existence of such a presumption. But we do not believe it affects the issues disputed in this case. As the Supreme Court has explained, the presumption against preemption is relevant to assessing “whether a given state authority conflicts with, and thus has been displaced by, the existence of Federal Government authority.” New York v. FERC, 535 U.S. 1, 17-18, 122 S.Ct. 1012, 152 L.Ed.2d 47 (2002). The presumption also operates when there is doubt about whether Congress intended to provide an agency with the authority to preempt. See N.Y. State Rest. Ass’n v. N.Y. City Bd. of Health, 556 F.3d 114, 123 (2d Cir.2009) (“[W]here the text of a preemption clause is ambiguous ..., courts ‘have a duty to accept the reading that disfavors pre-emption.’ ”) (quoting Bates v. Dow Agrosciences LLC, 544 U.S. 431, 449, 125 S.Ct. 1788, 161 L.Ed.2d 687 (2005)). But neither matter is in doubt here; there is no question that the City’s property tax law conflicts with the State Department Notice and that the State Department intends to supersede that tax law. Instead, the dispute is about whether the State Department acted lawfully by seeking to preempt State and municipal tax law. Resolving this question requires us to determine whether the State Department acted within the scope of its congressionally delegated authority, and that is a matter of statutory interpretation that proceeds, in the absence of ambiguity, “without any presumption one way or the other.” New York, 535 U.S. at 18, 122 S.Ct. 1012. It is to this inquiry that we now turn. The language, structure, and subject-matter of the FMA all strongly indicate that Congress meant to give the State Department authority to designate benefits that might conflict with and therefore preempt State and local law. See La. Pub. Serv. Comm’n, 476 U.S. at 374, 106 S.Ct. 1890 (“[T]he 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.”). As we have already explained, the FMA’s delegation of authority to the State Department is exceptionally broad. The Secretary of State is given the power not only to designate benefits, 22 U.S.C. § 4302(a), but also to make “[djeterminations with respect to the meaning and applicability” of that term, id. § 4302(b). More generally, the Act specifies that “[e]xcept as otherwise provided, any determination required under [the FMA] shall be committed to the discretion of the Secretary.” Id. § 4308(g) (emphasis added). Furthermore, these allocations are made in the context of foreign affairs, “the precise realm in which the Constitution accords [the executive branch] greatest power,” Palestine Info. Office, 853 F.2d at 934, and which is also an area in which there is often a need for the Nation to speak with one voice, see Am. Ins. Assoc. v. Garamendi, 539 U.S. 396, 413-14, 123 S.Ct. 2374, 156 L.Ed.2d 376 (2003). The “plenitude of Executive authority,” given to the Secretary of State to regulate foreign missions under the FMA controls the question of whether the State Department acted permissibly in designating a tax exemption benefit that preempted inconsistent State and local tax law. See Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 376, 120 S.Ct. 2288, 147 L.Ed.2d 352 (2000) (concluding that the fullness of Presidential authority delegated by Congress to impose calibrated sanctions and use economic leverage against a foreign country “controlled] the issue of preemption”). By granting the State Department the power to implement an expansive statutory term — “benefit”—and by providing the Department with significant discretionary authorities designed to achieve a foreign affairs objective, the FMA authorizes the Department to take actions that preempt conflicting State or local laws that implicate the Department’s supervisory function over foreign missions. Cf. id. (“It is simply implausible that Congress would have gone to such lengths to empower the President if it had been willing to compromise his effectiveness by deference to every provision of state statute or local ordinance that might, if enforced, blunt the consequences of discretionary Presidential action.”). The FMA authorizes preemption, that is, unless, as the City argues, section 4307 constitutes statutory language to the contrary. But, understood in context, section 4307 supports, rather than detracts from, our conclusion that the State Department acted within the scope of its statutory authority. That section demonstrates that Congress recognized that the State Department might wish to designate benefits that contravened State or local law, and that Congress chose to limit the State Department’s authority over some of these laws, namely State or local police powers, to negative preemption only. The City’s argument to the contrary notwithstanding, section 4307 cannot in its natural meaning be read as describing the FMA’s full-preemptive scope, but rather as a savings cause that insulates certain listed State and municipal powers from preemption. As such, section 4307 provides additional support for the conclusion that the State Department has the power to preempt any and all State and local laws that are not specifically protected. See Drake, 458 F.3d at 62 (“[A] narrow saving clause may in some contexts support an inference that preemption is otherwise broad.... ”). The legislative history of section 4307 of the FMA, which the City recounts at length, if anything gives further backing to this interpretation. While the legislative history confirms that Congress was concerned about preemption under the FMA and attempted to balance carefully the diplomatic interests of the federal government against the interests of State and local governments, it in no ways suggests that Congress intended for section 4307 to impose limits on the State Department’s ability to designate tax exemptions with preemptive effect. The original Senate and House bills contained a different preemption provision from the one that was ultimately enacted into law as section 4307. It read: Notwithstanding any other provision of law, no act ... of any State or municipal government authority shall be effective to confer or deny any benefits with respect to any foreign mission contrary to this title. S. 854, 97th Cong. § 207, reproduced, in S.Rep. No. 97-329, at 32 (1981); H.R. 3518, 97th Cong. § 207, reproduced in H.R.Rep. No. 97-102, Pt. 1, at 62 (1981). According to the reports of both the House and Senate Committees on Foreign Affairs, this provision “declare[d] the preemptive effect of the exercise of Federal jurisdiction with regard to the conferring or denying of benefits (including the location or use of real property) which are regulated by this title.” S.Rep. No. 97-283, at 15 (1981); H.R.Rep. No. 97-102, Part 1, at 36 (1981). The breadth of this preemption provision drew opposition, much of which was directed at the possibility that the FMA might conflict with local zoning laws and with home rule for the District of Columbia (which was implicated by section 206 — codified at 22 U.S.C. § 4306 — addressing the location of foreign missions in Washington D.C., as well as by the more general provisions regarding benefits). The State Department tried to address these concerns. The Assistant Secretary of State for Administration sent a letter to the Senate discussing the preemptive scope of section 207 and what effect it would have on “state or municipal land use processes, in connection with regulation of the location and size of the foreign missions.” See Letter from Thomas M. Tracy, Assistant Sec’y of State for Admin., to William V. Roth, Chairman, Governmental Affairs Comm., U.S. Senate (Mar. 4, 1982), reproduced in S.Rep. No. 97-329, at 5 (1981). The letter explained that such state and local authorities were “not affected, with the exception that the Secretary ... may disqualify a foreign government from obtaining or retaining official facilities in any location in the United States.” Id. The Governmental Affairs Committee Report acknowledged that some members were concerned because Mr. Tracy’s interpretation — which the Committee understood to describe a “ ‘negative veto’ ” — was not then reflected in the text of the bill, but the majority of the committee ultimately shared Mr. Tracy’s view that the statute did not interfere with or preempt local zoning and regulatory policies. See S.Rep. No. 97-329, at 16-17 (1981). On the issue of Washington D.C. home rule, the Committee acknowledged that section 206 did allow for the preemption and alteration of zoning and land use regulations, but concluded that in other respects “District of Columbia laws and ordinances, including tax and penal codes, [could not] be preempted by th[e] legislation.” Id. at 17 (emphasis added). Some in the Committee were not mollified. Five senators recorded their “minority views” and “object[ed] to the broad federal preemption language of sec. 207 of the bill.” Id. at 42 (minority views). They believed that “the effect of this provision would be to override not only [laws in the] District of Columbia, but also other municipalities’ and states’ laws concerning such things as zoning for consulates; building ... codes ...; tax codes; police powers and penal codes.” Id. (emphasis added). The senators feared that if the Secretary, in her discretion, determined to “confer or deny any of the kinds of ‘benefits’ ” under the FMA, those benefits would be conferred or denied “regardless of the requirements of local or state law.” Id. The senators argued that such a “sweeping preemption of federal, state, and local law” was not necessary to accomplish diplomatic reciprocity and was not required by the terms or intent of the VCDR. Id. They also rejected the Assistant Secretary’s assurance “that a negative preemption was all that was intended” because they concluded that section 207 was “not so narrowly drawn.” Id. at 43. The senators reported that these concerns about state and local autonomy were shared by “the National League of Cities, the U.S. Conference of Mayors, and several State Attorneys General.” Id. In the end, section 207 was amended at conference to its present form. Under it, the reference to State or municipal laws being preempted was altered so that, as to “any State or municipal law or governmental authority regarding zoning, land use, health, safety, or welfare,” only negative preemption was permitted. 22 U.S.C. § 4307. We recognize that the minority views of the Report for the Senate Governmental Affairs Committee demonstrate that there were some members of Congress who did not wish to give the State Department the authority to do what it has done in the Notice: override State and municipal tax laws. See S.Rep. No. 97-329, at 42 (1981) (minority views). It is also possible to read the majority report of that Committee as reflecting a view that — before the statutory language was altered — the FMA did not actually provide the State Department with this power. See id. at 17. But when section 4307 was changed to its present form, the modified provision stated that preemption of areas like zoning and land use was limited to the exercise of a negative veto, and significantly said nothing whatever about tax laws. This silence is conspicuous. Where the record indicates that there were concerns within Congress that the FMA would empower the State Department to preempt affirmatively a variety of State and local laws including tax laws, we cannot read a statutory modification that limited the State Department’s ability to preempt affirmatively some of those laws — not including tax laws — as implicitly barring affirmative preemption of other local laws, and specifically tax laws. III. Having concluded that the State Department’s decision to create an exemption from all property taxes (including State and local taxes) for property owned by foreign governments and used to house staff of permanent missions and consular officers was within the Department’s authority under the FMA, we now consider whether the Notice also invalidates taxes previously assessed by the City and nullifies the City’s tax liens. Once again, our inquiry involves two questions: (1) Does the language of the Notice require that it be given retroactive effect? And if so, (2) has Congress provided the State Department with statutory authority to exempt missions from taxation retroactively? See Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208-09, 109 S.Ct. 468, 102 L.Ed.2d 493 (1988); Rock of Ages Corp. v. Sec’y. of Labor, 170 F.3d 148, 158 (2d Cir.1999). The language of the Notice clearly resolves the first question. The Notice states: “The exemption from real property taxes provided by this designation and determination shall apply to taxes that have been or will be assessed against any foreign government with respect to property subject to this determination, and shall operate to nullify any existing tax liens with respect to such property....” 74 Fed. Reg. 31,788 (emphasis added). And there can be no doubt that what the State Department has done is to create a retroactive rule because it “attaches a new disability” to prior tax assessments made by the City in the form of invalidation through federal preemption. See Landgraf v. USI Film Prods., 511 U.S. 244, 269, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994) (explaining that laws “which take[] away or impair!] vested rights acquired under existing laws, or create! ] a new obligation, impose!] a new duty, or attach!] a new disability, in respect to transactions or considerations already past, must be deemed retrospective” (internal quotation marks omitted)). We therefore turn to whether the State Department had the statutory authority to confer such a retroactive property tax exemption. A. “Retroactivity is not favored in the law.” Sweet v. Sheahan, 235 F.3d 80, 89 (2d Cir.2000) (quoting Bowen, 488 U.S. at 208, 109 S.Ct. 468). Courts, accordingly, have regularly employed a presumption against retroactivity as a default rule for statutory interpretation. See Landgraf 511 U.S. at 272-73, 114 S.Ct. 1483. As applied to rulemaking by executive agencies and departments, this presumption against retroactivity means that “a statutory grant of legislative rulemaking authority will not, as a general matter, be understood to encompass the power to promulgate retroactive rules unless that power is conveyed by Congress in express terms.” Bowen, 488 U.S. at 208, 109 S.Ct. 468; accord Rock of Ages Corp., 170 F.3d at 158. “Even where some substantial justification for retroactive rulemaking is presented, courts should be reluctant to find such authority absent an express statutory grant.” Bowen, 488 U.S. at 208-09, 109 S.Ct. 468. The Government argues that the presumption against retroactivity is not relevant to this case because the Notice involves Executive action in the foreign affairs context and because it implicates only public, rather than private, rights. For this proposition, it relies by analogy on Republic of Austria v. Altmann, 541 U.S. 677, 124 S.Ct. 2240, 159 L.Ed.2d 1 (2004), where the Supreme Court declined to apply an antiretroactivity presumption to the FSIA, and held that the FSIA standards for sovereign immunity apply to claims based on conduct predating the FSIA’s enactment. See id. at 696-97, 124 S.Ct. 2240; see also Republic of Iraq v. Beaty, — U.S. -, 129 S.Ct. 2183, 2194, 173 L.Ed.2d 1193 (2009) (finding th