Opinion for the court filed by
Circuit Judge NIES.
Dissenting opinion filed by Circuit Judge STARR.
NIES, Circuit Judge:
In three consolidated cases, thirty-one nuclear power reactor licensees (petitioners) seek to invalidate a final rule entered on September 16, 1986, by the Nuclear Regulatory Commission ("NRC" or "Commission"), which imposes a uniform "Annual Fee" on those licensees for the fiscal year 1987. "Annual Fee for Power Reactor Operating Licenses and Conforming Amendment," 51 Fed.Reg. 33,224 (Sept. 18, 1986), corrected at 52 Fed.Reg. 34,082 (Sept. 25, 1986), codified at 10 C.F.R. pt. 171 (1987). The Annual Fee was imposed under the Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA"), Pub. L. No. 99-272, 100 Stat. 82 (1986), which became effective on April 7, 1986.
Petitioners argue, first, that the NRC violated the standards contained in COBRA for imposition of a fee. Second, they maintain that if COBRA were interpreted to authorize NRC's annual flat fee, then the measure would constitute an unconstitutional delegation of Congress' power to tax. In addition, petitioners assert procedural errors in promulgation of the rule which, they allege, deprived them of a meaningful opportunity to comment on the NRC rule and preclude meaningful appellate review. After reviewing petitioners' numerous variations on the above arguments, we conclude that no sufficiently persuasive ground has been advanced to warrant judicial invalidation of the subject rule and that the rule lawfully implements COBRA.
I
Before enactment of COBRA, the Commission, like other agencies, has charged user fees for special benefits rendered to identifiable entities under the Independent Offices Appropriation Act of 1952 ("IOAA"), 31 U.S.C. § 9701 (1982) (see 10 C.F.R. pt. 170 (1987)). As established by judicial interpretation, the amount of a fee charged under IOAA is limited to the cost to the agency of a specific benefit rendered to a particular entity. See, e.g., National Cable Television Ass'n, Inc. v. United States, 415 U.S. 336, 94 S.Ct. 1146, 39 L.Ed.2d 370 (1974); Federal Power Comm'n v. New England Power Co., 415 U.S. 345, 94 S.Ct. 1151, 39 L.Ed.2d 383 (1974). Under IOAA, the Commission has imposed fees for services, for example, for review of a license application or for an inspection, but it has never charged for providing general regulatory services ("generic services"), such as research and rule-making. The Commission's IOAA fee schedule was judicially approved in Mississippi Power & Light Co. v. NRC, 601 F.2d 223 (5th Cir.1979), cert. denied, 444 U.S. 1102, 100 S.Ct. 1066, 62 L.Ed.2d 787 (1980). IOAA is generally applicable to all government agencies.
In 1985, Congress enacted COBRA which contains provisions directing the NRC, inter alia, to recoup up to thirty-three percent of its budget through charges imposed on its licensees. More specifically, section 7601(a) of COBRA, to be codified at 42 U.S.C. § 2213, required the Commission, within ninety days after enactment, to evaluate a system to assess and collect annual fees from the Commission's licensees which would "fund all or part of the activities conducted by the Commission," and to provide Congress with a report. Under section 7601(b)(1), the Commission was required, within forty-five days of its report, to impose annual charges on its licensees through rulemaking, subject to three limitations: (1) the aggregate annual fees plus other amounts collected (e.g., under IOAA) "may not exceed" thirty-three percent of the Commission's fiscal year costs, (2) the annual charges must be "reasonably related to the regulatory service provided by the Commission," and (3) the charges "shall fairly reflect the cost to the Commission of providing such service."
Acting within COBRA'S tight deadlines, the Commission timely issued its final "Annual Fee" rule. That rule sets a uniform, annual fee for each power reactor operating licensee ("operating licensee") by calculating the Commission's costs budgeted for certain generic services which it concluded were reasonably related to regulating all licensees in that category. The total of those costs are compared with thirty-three percent of the Commission's budget less fees collected from all licensees under the IOAA. The smaller amount is adopted as the total amount to be recouped. The individual annual charge to each operating licensee is uniform, the total amount to be recouped simply being divided by the number of such licensees. If fees collected under IOAA and COBRA exceed the thirty-three percent ceiling, the rule provides for a refund. A particular licensee can request an exemption under certain circumstances. No COBRA fee is imposed on licensees other than operating licensees, although all licensees continue to pay IOAA fees. The NRC's methodology resulted in a fee of $950,000 per reactor for 1987. 51 Fed.Reg. at 33,231.
The thirty-one petitioners before us are licensees on whom the new fees have been imposed.
II
Petitioners challenge the Commission's interpretation of the statute, asserting that the standards of section 7601(b)(1) of COBRA do not authorize a uniform annual fee on operating licensees based on the cost of generic services. That challenge has several facets which we address in turn.
A
Petitioners first argue that, while section 7601(b)(1)(B) states only that the user fees charged "shall be reasonably related to the regulatory service provided by the Commission" without specifying the recipient of the "regulatory service" that Congress had in mind, the paragraph cannot reasonably be interpreted to authorize fees except for regulatory services to an identifiable recipient. Per petitioners, the language of COBRA must be interpreted the same as the courts have interpreted the IOAA and other fee statutes: any fee (in contrast to a tax) must relate to a specific benefit bestowed upon a specific beneficiary. See, e.g., National Cable, 415 U.S. at 340-41, 94 S.Ct. at 1148-49 (fee, unlike tax, is for benefit to applicant "not shared by other members of society"); New England Power, 415 U.S. at 351, 94 S.Ct. at 1155 (charges for regulatory activities of benefit to an entire industry are in the "domain of taxes"). Also, per petitioners, a corollary of this requirement is that fees may not be assessed for activities that do not specifically benefit the feepayer or that serve an independent public interest. See, e.g., Central & S. Motor Freight Tariff Ass'n v. United States, 777 F.2d 722, 729-31 (D.C.Cir.1985); National Ass'n of Broadcasters v. FCC, 554 F.2d 1118, 1128-29 (D.C.Cir.1976) (invalidating FCC fee schedule because independent public interests were represented in all fees).
In this case, petitioners contend, the equal division of the costs of generic services results not only in one licensee carrying the burden of others who require more general services, but also in the licensees paying for the cost of services which have an independent public benefit. In the absence of an explicit legislative expression of intent to change generally understood limitations on fee collection, petitioners urge that the statute should be interpreted to preclude the NRC from entering into a "constitutionally unchartered area." Further, petitioners point out that the language of COBRA is sufficiently similar to the provisions of IOAA, except for the explicit direction in IOAA that the fee be based, inter alia, on "the value of the service to the recipient," that the COBRA fee authorization should be given the same interpretation.
Having considered petitioners' reasons for urging the application of the IOAA standard, including the constitutional implications in rejection of that standard, we are unpersuaded that Congress intended that COBRA incorporate the same limitations as IOAA. As petitioners acknowledge, noticeably absent from COBRA is the IOAA limitation that the fee reflect "the value of the [agency's] service to the recipient." Further, as the Floor Managers of COBRA made clear, the language was not intended to reiterate IOAA standards:
The charges assessed pursuant to this authority shall be reasonably related to the regulatory service provided by the Commission and fairly reflect the cost to the Commission of providing such service. This is intended by the conferees to establish a standard separate and distinct from the Commission's existing authority under the Independent Offices Appropriations Act of 1952 in order to permit the Commission to more fully recover the costs associated with regulating various categories of Commission licensees.
132 Cong.Rec. H879 (daily ed. March 6, 1986); 132 Cong.Rec. S2725-6 (daily ed. March 14, 1986) [hereafter cited as "Floor Managers' Report"]. Moreover, if the COBRA and IOAA fee standards were the same, COBRA would have been unnecessary. The conclusion appears inescapable that Congress did not intend the Commission to apply the IOAA standard, or the case law developed under that standard, when assessing fees under COBRA. Instead, Congress intended the Commission to recover costs of providing services which were not recoverable under IOAA. Indeed, Congress estimated that NRC should recover approximately $80,000,000 per fiscal year over and above IOAA collections. 132 Cong.Rec. H879 (daily ed. Mar. 6, 1986); 132 Cong.Rec. S2725 (daily ed. Mar. 14, 1986).
Under this interpretation, NRC may recover generic costs, that is, costs which do not have a specific, identifiable beneficiary. Moreover, we see no requirement that these generic costs must be reduced by a portion artificially allocated to public benefit, so long as the fees charged are "reasonably related" to services provided the feepayers and do not exact payment for an independent public benefit. See Central & S. Motor Freight, 777 F.2d at 729. Unlike IOAA, which if read literally gave virtually unlimited discretion to all government agencies to recoup the entire amount of an agency's budget "in the public interest," Congress has provided, by the provisions before us, specific direction to a single agency to recover a limited amount of the costs of generic services. With such direction, we conclude that Congress did not intend to require apportionment of generic services between benefit to the public and benefit to the licensees where, as appears here, the two are interdependent or inextricably intertwined.
B
Other arguments against the NRC's interpretation of COBRA are narrower in scope. We are urged to hold, for example, that research, a major item in the cost base used to calculate the annual fee, is not a "regulatory service" within the meaning of section 7601(b)(1)(B). The Commission defends the inclusion of that item on the ground that the included research programs are necessary for the Commission to have continuing confidence that licensed reactors can be operated consistent with the public health and safety and the Commission's regulations. It points to the fol lowing statements in NRC's 1986 Annual Report, which describe the NRC's research effort as follows:
The programs of the Office of Nuclear Regulatory Research (RES) are an essential and integral part of the regulatory process. Safety research supports nuclear regulation by providing defensible technical bases for regulatory action to ensure the protection of public health and safety. NRC research efforts emphasize early identification of potential problems with operating reactors____
4 NRC Ann.Rep. 159 (1987).
Because the fee schedule at issue here is an agency rule based upon the agency's construction of the statute which it administers, the scope of our review is limited. Chevron U.S.A., Inc. v. Natural Resources Defense Counsel, 467 U.S. 837, 842, 104 S.Ct. 2778, 2781, 81 L.Ed.2d 694 (1984). We must uphold the Commission's interpretation that the research included in the base is a "regulatory service," unless it is "arbitrary, capricious, an abuse of discretion, or otherwise contrary to law." Central & S. Motor Freight, 777 F.2d at 729. In our judgment the Commission's interpretation passes that test.
Another argument is that the provision in section 7601(b)(1), directing the NRC to "collect annual charges from its licensees," clearly means from all of its licensees. The Commission imposed the fee only on one category of licensees, power reactor operators. It excluded materials licensees, for example, from the coverage of the rule. That exclusion violated COBRA under the petitioners' interpretation.
The statute itself is silent on which licensees are to be charged the annual fee. Congress intended, however, to allow the Commission to recover "costs associated with regulating various categories of Commission licensees." Floor Managers, Report, supra at 5 (emphasis added). Thus, we see nothing in the statute or legislative history which would deprive the Commission of wide discretion in this matter. The explanation for exclusion of groups other than operating licensees was that the Commission devotes a relatively small amount of resources to their regulation and that the large number of materials licensees, for example, would create administrative difficulties were the Commission to calculate an annual fee for them. 51 Fed.Reg. at 24082. We conclude that the Commission's explanation is not arbitrary and, thus, the Commission did not abuse its discretion by failing to impose the annual fee on all licensees.
Petitioners perceive another misconstruction of the statute in the imposition of a uniform fee on reactor operators, arguing that the words "reasonably related to the services provided" mean "provided to each licensee." We understand this argument to differ from the principal argument that the 10 A A standard applies in that, even if the cost of generic services is included in the base, petitioners maintain, the statute requires apportionment of that cost among the individual licensees. This has been generally presented as a "fairness" argument, i.e., that smaller or less profitable licensees should not be made to shoulder the same burden as larger or more lucrative businesses. We note with strong approval that the Commission is attempting to develop a revised fee schedule which would provide a range of fees. While the NRC might have reasonably adopted a different fee schedule, the record does not indicate that Congress perceived such basic differences between licensees within a category that the statute precludes a uniform fee. We recall in this context the short time Congress afforded the Commission to frame and promulgate a rule.
Turning to paragraph (A) of s.ection 7601(b)(1), petitioners assert error in the Commission's interpretation of "other amounts collected by the Commission." Such "other amounts" reduce the total amount of fees that may be collected under COBRA. The Commission did not include interest and late fees collected under 31 U.S.C. § 3717 (1982), payments received from other governmental agencies, or fines and penalties collected from the licensees as "other amounts collected." The Commission limited the deduction for "other amounts collected" to the fees it collected under the IOAA.
We find the petitioners' arguments that the additional items are "other amounts collected" unpersuasive. Because the purpose of COBRA was to recover costs incurred by the Commission, the phrase "other amounts collected" can reasonably be interpreted to mean other cost-recovery measures, e.g., the IOAA. Penalties, fines, and interest charges are not cost-recovery measures. Moreover, petitioners' interpretation would allow utilities that violate the law, and pay consequent penalties or fines, to benefit by recovering a portion of the penalty or fine as a reduced user fee. We do not believe Congress intended such a result.
With respect to payments received from other governmental agencies, we reiterate that COBRA's purpose was to generate additional federal revenue. If NRC fees were reduced by the amount of reimbursements from other governmental agencies, per petitioners' interpretation of COBRA, the Commission would not achieve that statutory purpose. It is self-evident that a transfer of funds from one agency to another fails to increase federal revenue.
Ill
Petitioners challenge the validity of the final rule because of alleged violations of the Administrative Procedure Act (APA) § 4, 5 U.S.C. § 553 (1982). The APA requires the Commission to provide notice of its proposed rulemaking adequate to afford "interested parties a reasonable opportunity to participate in the rulemaking process." Such notice must not only give adequate time for comments, but also must provide sufficient factual detail and rationale for the rule to permit interested parties to comment meaningfully. See, e.g., Connecticut Light & Power Co. v. NRC, 673 F.2d 525, 530-31 (D.C.Cir.), cert. denied, 459 U.S. 835, 103 S.Ct. 79, 74 L.Ed.2d 76 (1982); Home Box Office, Inc. v. FCC, 567 F.2d 9, 35 (D.C.Cir.), cert. denied, 434 U.S. 829, 98 S.Ct. 111, 54 L.Ed.2d 89 (1977).
On the latter point, petitioners assert that the NRC cost base statement is merely conclusory and that no explanation is given with respect to the criteria used to include or exclude particular items. They point, for example, to the dollar amount of the cost of reactor-related research in the proposed rule and to the reduction, purportedly without explanation, made in that cost figure in the notice promulgating the final rule.
In the final notice the Commission had explained that between the proposed and final rule it had reviewed the research costs "to ensure that only generic costs associated with all power reactors, with operating licenses, regardless of type, were included in the cost basis." 51 Fed.Reg. at 33226 (emphasis added). We note also that the lower cost base of the final notice still exceeded' thirty-three percent of the NRC budget less IOAA fees, and, thus, the latter figure was used to limit the collectable fees. See 51 Fed.Reg. at 33228. It is essentially irrelevant, therefore, that some costs were removed from the base as long as the remaining costs meet, first, the statutory criteria that they be reasonably related to the regulatory services provided by the NRC and, second, the notice's criteria that the costs be associated with all operating licensees. Petitioners do not identify any included programs which do not fall into that category. We conclude that the Commission's explanation was adequate.
Petitioners also argue that the fifteen-day period for comment was too short. On that issue, the Commission notes that Congress gave it only ninety days to report and forty-five more days to enact a final rule. Given Congress' deadline, the Commission maintains that the fifteen days for comment were reasonable.
We find no evidence that petitioners were harmed by the short comment period. The Commission received sixty-one comments, some of them lengthy, addressing its proposed rule. Those comments had a measurable effect on the final rule. Petitioners have had a substantial period of time since publication of the final rule to consider the rule and the supporting data. No substantive challenges which differ in kind from the original comments have been raised. In this instance, the short length of the comment period appears to be no more than a technical argument, which we do not find meritorious. In sum, we conclude that the Commission's rulemaking process did not violate the APA.
IV
Having upheld the "Annual Fee" rule on all other asserted grounds, we must necessarily reach the issue of the statute's constitutionality, as interpreted to authorize assessment of fees for generic services. Petitioners argue that, under this construction, the statute constitutes an unconstitutional delegation to the Commission of Congress' power to tax under article I, section 8. If the Commission can require licensees to pay fees for generic, industry-wide services, petitioners argue, then the Commission has in effect been delegated a broad power to levy taxes. In petitioners' view, such a delegation would be unconstitutional on two grounds: (1) the Constitution does not permit Congress to delegate its taxing power, so that any delegation would be unconstitutional, and (2) the delegation here is unconstitutional, in any event, because it constitutes a transfer of power that is unchecked by intelligible standards. We disagree; even if the NRC assessment were characterized a "tax" rather than a "fee," this delegation would meet constitutional limitations.
A
The decisions of the Supreme Court in National Cable and New England Power lay the foundation for the analysis of the issue raised by petitioners' first ground and must be briefly reviewed. Both involved the IOAA. The IOAA authorized each federal agency to prescribe by regulation a fee for the agency's services,
taking into consideration the direct and indirect cost to the Government, value to the recipient, public policy or interest served, and other pertinent facts____
National Cable, 415 U.S. at 337, 94 S.Ct. at 1147 (quoting the IOAA of 1952, 31 U.S.C. § 483a, as it read before Title 31 was revised in 1982).
The statement of facts in National Cable indicates that the FCC imposed fees upon community antenna television (CATV) systems, pursuant to the IOAA, for the first time in 1970. CATV outlets, while not licensees of the FCC, had been held subject to some regulation by that agency. See United States v. Southwestern Cable Co., 392 U.S. 157, 88 S.Ct. 1994, 20 L.Ed.2d 1001 (1968). The FCC estimated its direct and indirect costs for CÁTV regulations and imposed a uniform annual fee to recover that entire amount of its costs from CATV systems, determining that such recovery was "fair and reasonable" and approximated the "value to the recipient" within the meaning of the IOAA.
Focusing on the word "fee" used in IOAA, the majority in National Cable discussed the different connotation of that term, as used in the IOAA, from a "tax." The opinion contains the following passage, which has led to much debate:
Taxation is a legislative function, and Congress, which is the sole organ for levying taxes, may act arbitrarily and disregard benefits bestowed by the Government on a taxpayer and go solely on ability to pay, based on property or income. A fee, however, is incident to a voluntary act, e.g., a request that a public agency permit an applicant to practice law or medicine or construct a house or run a broadcast station. The public agency performing those services normally may exact a fee for a grant which, presumably, bestows a benefit on the applicant, not shared by other members of society. It would be such a sharp break with our traditions to conclude that Congress had bestowed on a federal agency the taxing power that we read 31 U.S.C. § 483a narrowly as authorizing not a "tax" but a "fee." A "fee" connotes a "benefit" and the Act by its use of the standard "value to the recipient" carries that connotation. The addition of "public policy or interest served, and other pertinent facts," if read literally, carries an agency far from its customary orbit and puts it in search of revenue in the manner of an Appropriations Committee of the House.
National Cable, 415 U.S. at 340-41, 94 S.Ct. at 1149 (footnote omitted). In the companion case of New England Power, the Supreme Court further distinguished the IOAA-intended "fee" system from a "tax" system, focusing on the "benefit" to an "identifiable recipient" who "asked for" and "received" services from the agency.
Petitioners argue that in these decisions the Supreme Court prohibited any delegation of the power to tax and held that an agency may impose fees (as delimited therein) only for services to individual beneficiaries and not for services that have a general public benefit. The Court so interpreted the IOAA, per petitioners, to avoid a constitutional problem and, indeed, drew a distinction between "fees" and "taxes" of constitutional dimension. The government maintains that National Cable and New England Power do not fix the constitutional boundary of Congress' power to give an agency authority to impose charges on entities within its regulatory power by a "metaphysical distinction" between "fees" and "taxes."
A close reading of those decisions supports the government's position. The "constitutional problem" actually discussed and avoided by the Court was the delegation of congressional power to agencies without Congress setting standards for their guidance. Specifically, the Court said:
The Court, speaking through Mr. Chief Justice Hughes said in Schechter Corp. v. United States, 295 U.S. 495, 529 [55 S.Ct. 837, 843, 79 L.Ed. 1570]:
"The Constitution provides that 'All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.' Art. I, § 1. And the Congress is authorized 'To make all laws which shall be necessary and proper for carrying into execution' its general powers. Art. I, § 8, par. 18. The Congress is not permitted to abdicate or to transfer to others the essential legislative functions with which it is thus vested."
Congress, of course, does delegate powers to agencies, setting standards to guide their determination. Thus, in Hampton & Co. v. United States, 276 U.S. 394 [48 S.Ct. 348, 72 L.Ed. 624], Congress enacted a flexible tariff law which authorized the imposition of customs duties on articles imported which equaled the difference between the cost of producing them in a foreign country and of selling them here and the cost of producing and selling like or similar articles in the United States. Provision was made for the investigation and determination of these differences by the Tariff Commission which reported to the President who increased or decreased the duty accordingly. The Court in sustaining that system said: "If Congress shall lay down by legislative act an intelligible principle to which the person or body authorized to fix such rates is directed to conform, such legislative action is not a forbidden delegation of legislative power." Id., at 409 [48 S.Ct. at 352].
Whether the present Act meets the requirement of Schechter and Hampton is a question we do not reach. But the hurdles revealed in those decisions lead us to read the Act narrowly to avoid constitutional problems.
National Cable, 415 U.S. at 342, 94 S.Ct. at 1149-50.
The majority opinion in National Cable makes no mention of a flat constitutional prohibition against delegation of the tax power. Had there been no dissent, it is unlikely scholars would have launched into the esoteric debate over which powers of Congress can be delegated and which cannot. It is the dissent that interjected the idea that the majority's discussion of constitutional problems turns on a "metaphysical distinction" between taxes and fees. New England Power, 415 U.S. at 352, 94 S.Ct. at 1155 (Marshall, J., concurring) (incorporated by reference as dissent to National Cable, 415 U.S. at 344, 94 S.Ct. at 1150). While a lower court is not free to depart from a holding of the Supreme Court and will pay close attention even to dicta therein, we know of no principle that requires us to accept the characterization of the majority's holding put forth in a dissent. In some instances the majority may choose to add comments to answer specifically a mischaracterization of its ruling. See, e.g., Bowen v. Yuckert, — U.S. -, 107 S.Ct. 2287, 2294 n. 6, 96 L.Ed.2d 119 (1987) ("According to the dissent our opinion implies that the Secretary has unlimited authority to deny meritorious claims____ It hardly needs saying that our opinion carries no such implication."). That choice is, however, simply a matter of judicial style, and a majority's failure to comment cannot be taken as acceptance of a strawman raised by dissent.
Thus, our obligation here is to interpret and apply the majority opinions in National Cable and New England Power. We read those opinions to hold that the "constitutional problem" mentioned therein was the adequacy of the standards in the delegation. Without the Court's narrow reading of the IOAA, the standards were constitutionally suspect. That interpretation was found, however, to be mandated by the language of the statute and the legislative history, both indicating that the IOAA authorized fees only for specific benefits to specific licensees. Nothing indicates that the interpretation was dictated by a constitutional prohibition against delegation by Congress of the tax power where adequate standards are set for implementation of congressional intent.
One need only briefly review the Schechter and Hampton decisions, relied upon for the holding in National Cable, to conclude that the Court did not hold in National Cable that the taxing power could not be delegated. The Court in Schechter discussed "limitations of the authority to delegate" and found that a delegation of legislative power, under section 3 of the National Industrial Recovery Act of June 16, 1933, was unconstitutional. Congress had failed to lay down the policies and to establish standards under which such delegation was to be exercised. The Court's citation to Schechter in National Cable indicates, therefore, that it was discussing delegations in general without differentiating the taxing power from other powers.
The Court's reliance on Hampton, 276 U.S. at 409, 48 S.Ct. at 352, completely negates the gloss petitioners put on the National Cable decision. Hampton specifically addressed delegation of the tax power. Rather than forbidding such delegation, Hampton explicitly sanctioned such delegation at the specific point of reference:
It is conceded by counsel that Congress may use executive officers in the application and enforcement of a policy declared in law by Congress, and authorize such officers in the application of the Congressional declaration to enforce it by regulation equivalent to law. But it is said that this never has been permitted to be done where Congress has exercised the power to levy taxes and fix customs duties. The authorities make no such distinction. The same principle that permits Congress to exercise its rate making power in interstate commerce, by declaring the rule which shall prevail in the legislative fixing of rates, and enables it to remit to a rate-making body created in accordance with its provisions the fixing of such rates, justifies a similar provision for the fixing of customs duties on imported merchandise. If Congress shall lay down by legislative act an intelligible principle to which the person or body authorized to fix such rates is directed to conform, such legislative action is not a forbidden delegation of legislative power.
Hampton, 276 U.S. at 409, 48 S.Ct. at 352 (emphasis added).
Nothing said in National Cable, or any other Supreme Court case, overrules Hampton explicitly or implicitly. Being bound by Hampton, we decline petitioners' invitation to join in a debate on the difference between a "fee" and a "tax." While the difference has merit in other contexts, the difference does not rise to the level of making a delegation of taxing power, per se, unconstitutional. Thus, we reject petitioners' broad-brush argument and, assuming arguendo that the assessment under review is a "tax," turn to the question whether Congress has laid "down by legislative act an intelligible principle to which the person or body authorized to fix such rates is directed to conform." Hampton, 276 U.S. at 409, 48 S.Ct. at 352.
B
The standard set out in COBRA establishes a legislative policy that NRC collect up to thirty-three percent of its budget from fees "reasonably related to the regulatory service provided by the Commission" and that the fees "fairly reflect the cost to the Commission of providing such service." The burden is, of course, on petitioners to show that these standards are unintelligible. See, e.g., Yakus v. United States, 321 U.S. 414, 426, 64 S.Ct. 660, 668, 88 L.Ed. 834 (1944); Amalgamated Meat Cutters & Butcher Workmen v. Connally, 337 F.Supp. 737, 746 (D.D.C.1971). We are unpersuaded that petitioners have done so. Petitioners' argument returns again to the IOAA standard, this time to put forth the "specific beneficiary/specific benefit" standard as the minimum guide for assessment of charges. The NRC authorization under COBRA is markedly different from IOAA. To impose the IOAA standard on COBRA would defeat COBRA's purpose. We conclude that the delegation is no less precise, indeed, much more precise than delegations upheld by the Supreme Court. See, e.g., Lichter v. United States, 334 U.S. 742, 785-86, 68 S.Ct. 1294, 1316-17, 92 L.Ed. 1694 (1948) (recovery for "excessive profits" earned on war contracts); American Power & Light Co. v. SEC, 329 U.S. 90, 97, 67 S.Ct. 133, 138, 91 L.Ed. 103 (1946) (existence of company in holding company system must not "unduly or unnecessarily complicate the structure" or "unfairly or inequitably distribute voting power among security holders"); Yakus v. United States, 321 U.S. 414, 426, 64 S.Ct. 660, 668, 88 L.Ed. 834 (1944) (maximum prices must be "generally fair and equitable"); FPC v. Hope Natural Gas Co., 320 U.S. 591, 600, 64 S.Ct. 281, 287, 88 L.Ed. 333 (1944) ("just and reasonable rates" for natural gas); National Broadcasting Co. v. United States, 319 U.S. 190, 225-26, 63 S.Ct. 997, 1013-14, 87 L.Ed. 1344 (1943) (licensing of radio communications "as public convenience, interest or necessity requires"); Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381, 397, 60 S.Ct. 907, 914, 84 L.Ed. 1263 (1940) (price established for mine must yield a "fair return" on "fair value" of property); New York Cen. Sec. Corp. v. United States, 287 U.S. 12, 24, 53 S.Ct. 45, 48, 77 L.Ed. 138 (1932) (permitting consolidation of carriers when "in the public interest").
Moreover, it appears that in only two cases in all of our jurisprudence has the congressional delegation to an agency been invalidated on the ground that Congress has delegated power without, sufficient standards, specifically, Schechter (no standards provided to define when President should exercise delegated power to prohibit transportation of certain oil in interstate commerce, described as a "delegation running riot" in Justice Cardozo's concurrence, 295 U.S. at 553, 55 S.Ct. at 853) and Panama Ref. Co. v. Ryan, 293 U.S. 388, 55 S.Ct. 241, 79 L.Ed. 446 (1935) (Congress abdicated its legislative function by giving President virtually unlimited legislative authority over the economic system).
Without defining the limits of the COBRA delegation to the NRC, we conclude that the NRC has exercised its authority within congressional guidelines that provide sufficient standards. The NRC has reasonably limited regulatory services to programs which it concluded, with sufficient explanation, were clearly applicable to all operating licensees. Further, it reasonably limited the charges to those licensees only. We are unpersuaded of error or impermissible arbitrariness in the NRC's implementation of the statutory directive.
V
We have addressed only the arguments raised by petitioners which we found evoked the most serious questions concerning the legality of the NRC's annual user fee rule. A failure to address the nuances of some of petitioners' arguments should not be taken to mean that they were not considered. In sum, we uphold the Commission's 1987 annual user fee rule.
. Petitioners filed three, lengthy, separate, main briefs. Many of the arguments were essentially duplicative but were emphasized in one context in one brief and in another context in another. We have attempted to cover each point only once in a cohesive opinion. However, all arguments were taken into consideration in connection with the facet of the case in which it was presented by the various petitioners, as well as where it is expressly discussed in this opinion.
. Section 7601(b)(1) of COBRA provides in pertinent part:
(A) The maximum amount of the aggregate charges assessed pursuant to [COBRA] in any fiscal year may not exceed an amount that, when added to other amounts collected by the Commission for such fiscal year under other provisions of law, is estimated to be equal to 33 percent of the costs incurred by the Commission with respect to such fiscal year; and
(B) any such charge assessed pursuant to this paragraph shall be reasonably related to the regulatory service provided by the Commission and shall fairly reflect the cost to the Commission of providing such service.
. Refunds were made as a result of higher than expected IOAA fees and other adjustments resulting in a fee of 5838,000 for 1987. Some full waivers and partial exemptions of the annual fee have been granted for owners of a few, older reactors who might find it in their economic interest to close their reactors rather than pay the fee.
. The House Energy and Commerce Committee added NRC user fee provisions to proposed budget reconciliation legislation in late 1985. Without floor debate on those provisions, the House passed the legislation. 131 Cong.Rec. HI0954 (daily ed. Dec. 5, 1985). The Senate-passed version of the legislation did not even contain NRC user fee provisions, nor was there reported discussion in the Senate of the provisions. After the House-proposed provisions were submitted to the Conference Committee, COBRA issued. Both houses of Congress noted the Conference Report's failure to discuss the NRC user fee provisions; they explained the conferees' silence as an "oversight." 132 Cong.Rec. 14879 (daily ed. Mar. 6, 1986); 132 Cong.Rec. 52725 (daily ed. Mar. 4, 1986). Consequently, a statement by the Floor Managers about the NRC fee provisions was inserted into the Congressional Record.
. Contrary to the dissent, the majority does not treat the statutory interpretation argument (see II A) as a "fairness" argument.
. Commission Chairman Lando W. Zech, Jr., in drafting the Commission's "responses to additional post-hearing questions for Senator Simpson on user fees" and other matters "for inclusion in the Budget hearing record of February 18, 1987," stated:
The Commission, after further reflection, now recognizes that it would be preferable to base its annual fee on the principle that those licensees who require the greatest expenditure of NRC resources should pay the greatest annual fee. The NRC staff is now developing a proposed rule that would implement this approach.
Letter from Lando W. Zech, Jr. to Sen. Quentin Burdick, Chairman of the Committee on Environment and Public Works (April 10, 1987).
. We have considered petitioners' attack on the adequacy of the supporting data and the delay in availability. Given the broad nature of the programs which are included in the base, the data here are adequate. We are unpersuaded that the information was not available in time for meaningful comment. Again, the focus of this attack is, in essence, that a fee based on the costs of generic services is impermissible. Similarly, petitioners' attack on the NRC's methodology in computing the annual fee is largely tied to its argument that fees must be calculated on the basis of identifiable benefits to identifiable, individual recipients.
. Compare B. Schwartz, Administrative Law § 2.10 at 50-51 (2d ed. 1984), with 1 K. Davis, Administrative Law Treatise § 3:13 at 200 (2d ed. 1978).
. The Supreme Court has made it clear that the standards of a delegation of power in a statute are not tested in isolation. Rather, they derive "meaningful content from the purpose of the Act, its factual background and the statutory context." American Power & Light Co. v. SEC, 329 U.S. 90, 104, 67 S.Ct. 133, 142, 91 L.Ed. 103 (1946). See also Lichter v. United States, 334 U.S. 742, 785, 68 S.Ct. 1294, 1316, 92 L.Ed. 694 (1948); Fahey v. Mallonee, 332 U.S. 245, 250-52, 67 S.Ct. 1552, 1554-55, 91 L.Ed. 2030 (1947).