CONCURRING OPINION
Johnson, Judge:I am in accord that the protest herein should be sustained.
The grounds for this court’s decision in the previous case (The Best Foods, Inc. v. United States, 39 Cust. Ct. 305, C.D. 1945, affirmed on rehearing, 42 Cust. Ct. 310, Abstract 62865) are applicable to the present situation. We there held that the word “modify” connotes a limitation of that which is modified and that the President, under the authority given him by section 22(d) of the Agricultural Adjustment Act, could not “modify” a proclamation fixing a quota by changing the quota and adding a fee. The court of appeals affirmed our decision, but on the ground that the President may impose a quota or a fee, but not both. United States v. The Best Foods, Inc., 47 CCPA 163, C.A.D. 751. That holding strengthens our view that the substitution of a fee for a quota or vice versa is a major change, a different burden, and not a modification.
The procedure under which the President may initially levy a fee or fix a quota is found in section 22 (a) and (b) of said act, whereas the procedure by which the President may modify a previously imposed fee or quota is found in section 22(d). In the instant case, the latter procedure was followed rather than the former, although the resultant proclamation placed a different burden on the importation of peanuts, rather than modifying a previous one. The significance of the different procedural requirements is brought out in plaintiff’s brief, as follows:
The procedural requirements that were ignored were not matters of mere protocol or empty formality. They embodied a Congressional determination that the initiative in this field is lodged in joint action of the Secretary of Agriculture and the President 'since the field affects the integration of the complex *108programs of the Department of Agriculture, which the Secretary is charged to administer, with the President’s administration of the import aspect of foreign affairs. Under the statutory scheme, the role of the Tariff Commission is purely advisory and factual; it does not involve a policy element such as is involved in initiating action that cuts across two distinct areas of governmental operation.
The powers of the President under the Agricultural Adjustment Act are delegated powers and must be exercised in accordance with the procedures and limitations provided by Congress. Compliance therewith is necessary to give validity to the President’s action. Panama Refining Co. v. Ryan, 293 U.S. 388, 432; United States v. Schmidt Pritchard Co., Mangano Cycles Co., 47 CCPA 152, C.A.D. 750, certiorari denied, 364 U.S. 919; Hampton, Jr., & Co. v. United States, 14 Ct. Cust. Appls. 350, 369, T.D. 42030, affirmed 276 U.S. 394.
United States v. Elof Hansson, Inc., 48 CCPA 91, C.A.D. 771, is not controlling. In that case, an antidumping investigation was commenced without publication of a notice in the Federal Register, such as is required by the Administrative Procedure Act (5 U.S.C. § 1001, 60 Stat. 237) in connection with “rule making” proceedings. Plaintiff had knowledge of the investigation and actively participated. It was held that plaintiff had waived any procedural irregularities by taking part in the proceedings without timely objection.
In the instant case, a whole line of procedure required by a statute specifically applicable to the situation was not followed. The proceedings were not initiated by the Secretary of Agriculture and the investigation did not result from a communication from the Secretary to the President and from the President to the Tariff Commission. This is an entirely different matter from the failure to publish a notice where actual notice has been given to the interested parties, as in the Elof Hansson case. Here, the procedures set out in section 22 (a) and (b) of the applicable statute are conditions precedent to the imposition of a fee, and the failure to observe them renders the action taken ultra vires and of no effect. William A. Foster & Co. (Inc.) et al. v. United States, 20 CCPA 15, 20, T.D. 45673; Carl Zeiss, Inc. v. United States, 23 CCPA 7, T.D. 47654.
Furthermore, under section 22 of the Agricultural Adjustment Act, a fee or a quota could be imposed only if, without it, articles were practically certain to be imported under such conditions and in such quantities as to render ineffective or interfere with the price support program. Ho finding was made in the proclamation before us that this was true at that time. In fact, the whole tenor of the investigation and the proclamation is to the effect that there was a deficit in the domestic supply of peanuts and more were needed to meet the essential requirements of domestic peanut users. Since the situation was one where there was a need for more peanuts, it cannot be assumed, in the absence of a positive finding, that without a fee peanuts *109would be imported in sucli quantities as to constitute a threat to the price support program. On the contrary, where merchandise is in short supply, prices generally rise. Under such circumstances, the language of the proclamation that—
* * * the admission of sucli additional quantity of peanuts under the conditions and subject to the fee hereinafter proclaimed is necessary in order that the entry of such peanuts will not render or tend to render ineffective, or materially interfere with, the said program of the Department of Agriculture with respect to peanuts, or reduce substantially the amount of any product processed in the United States from peanuts with respect to which such program is being undertaken:
is not equivalent to the positive finding required by the statute that peanuts were practically certain to be imported under such conditions and in such quantities as to interfere with the price support program. Had the facts warranted, it would have been easy for the proclamation to state that if the quota were lifted, peanuts would be certain to be imported under such conditions and in such quantities as to interfere with the price support program and that the imposition of a fee was necessary to prevent this. The original proclamation providing for a quota on the importation of peanuts is couched in precisely such language. Here, on the other hand, a negative position, that the entry of peanuts subject to a fee would not interfere with the program, was taken without first sustaining the positive burden of demonstrating the necessity for any restriction.
Since, under the statute, certain findings are a condition precedent to the imposition of a quota or a fee, Congress meant those findings to be clear and precise so that the quota or fee would not be placed on importations, unless the situation warranted. This case demonstrates the wisdom of the prerequisite, since it is at least doubtful from the wording of the proclamation itself that the circumstances were such as to necessitate the imposition of a fee when it was stated that additional peanuts were needed to meet essential requirements of domestic users.
For the reasons stated, I concur in holding that the protest be sustained.