(concurring).
I reach the same conclusion as does the majority of the court, but I differ with them in the construction of the statutes and regulations under consideration.
The complaint filed in the commissioner’s court at Juneau, Alaska, charged appellant Hotch with the crime of fishing during the weekly closed period with all of his commercial gear in the water in violation of Regulation 102.51, as amended, of the commercial fishing regulations. After conviction in the commissioner’s court an appeal was taken to the district court and upon a trial de novo the appellant was again found guilty. At the time this alleged offense occurred the Department of the Interior was in the process of amending its original Regulation 102.51, 17 F.R. 1475; 50 C.F.R. § 102.51, and the charge was made and the trial was had upon the theory that the amended regulation was in force and effect. Such was not the case. The time required by law for the promulgation of a regulation before it could become operative had not expired. 5 U.S.C.A. § 1003(c). However, I agree that the language of the charge as stated in the complaint brings the ease within the prohibitory provisions of the original Regulation 102.51. That regulation reads:
“102.51 Prohibited by commercial fishermen. No commercial salmon fisherman shall take salmon for personal use during any commercial salmon season except in compliance with commercial fishing regulations, or within 48 hours before or after such season.” 17 F.R. 1475; 50 C.F.R. § 102.51.
The regulation prohibits a commercial' fisherman from taking salmon for personal use during any commercial salmon season unless he complies with commercial fishing regulations. As I read the-regulation it does not absolutely prohibit a commercial fisherman from taking salmon for personal use during the designated time. He may fish for personal-use, or commercially for that matter, provided he complies with the regulations. The question then arises, what are the commercial fishing regulations with which he must comply? An answer must be sought in the laws regulating fishing in Alaska and the regulations promulgated thereunder.
Insofar as I am advised, the only pertinent law is found in §§ 221 and 234 of Title 48 U.S.C.A. Section 234 reads as. follows:
“§ 234. Closed season for salmon; stationary and floating traps. It shall be unlawful to fish for, take, or kill any salmon of any species in any manner or by any means except by hand rod, spear, or gaff for personal use and not for sale or barter, and except by hook and line for either personal or commercial use, in any of the waters of Alaska over which, the United States has jurisdiction from six o’clock post meridian of Saturday of each week until six o’clock ante meridian of the Monday following, or during such further closed time as may be declared by authority conferred by law, but such authority shall not be exercised to prohibit the taking of fish for local food requirements or for use as dog feed.” 48 U.S.C.A. § 234.
It is clear that this section applies to all fishermen and defines the kind of gear which may be used during the closed period. The use of hand gear only is permitted during said period and nowhere *249therein can be found permission to use nets. The Secretary of the Interior is given authority to extend the closed period with the proviso, however, that such authority shall not be exercised so as to prohibit the taking of fish for local food requirements or for dog feed. Unless the Secretary in extending the closed period shall otherwise provide, the same restrictions in § 234 as to the type of gear which may be used during the closed period apply to the extended closed priod. The Secretary extended the weekend closed period to begin at 6 p. m. Thursday instead of Saturday, but he has not granted permission to use nets during the extended period. To the contrary in the amended Regulation 102.51, 17 F.R. 4347; 50 C.F.R. § 102.51, the Secretary has expressly forbidden the use of net, seine, or trap. Therefore, during the extended closed period only such gear as is expressly allowed by § 234 may be used to take salmon for personal or commercial use. I am of the opinion that the Secretary amended Regulation 102.51 in order to make absolutely clear the prohibition against the use of nets by all fishermen during the extended closed period. The amended regulation is an administrative determination that the statute is not a bar to commercial fishermen as such, but rather is a bar against the use of commercial gear during the closed period.
The food reservation clause of § 234 does not prevent the Secretary from regulating the kind of gear that may be used during the extended closed period. That clause is designed to prevent the Secretary of the Interior from making such unreasonable extensions of the closed period or such unreasonable limitations on the kind of gear so as to effectively prevent the local inhabitants from obtaining sufficient fish to satisfy their food requirements. There is no showing that the prohibition against the use of commercial gear during the extended closed period has prevented the local inhabitants from obtaining sufficient fish for their food requirements or for use as dog food. Under the existing law, during the open period fish may be taken without limit commercially and for personal use with all manner and type of commercial gear, and during the limited closed period, fishermen are free to use hook and line for commercial fishing, and hand rod, spear, gaff and hook and line for personal fishing. Only by construing § 234 to permit the Secretary of the Interior to regulate all fishing can effect be given to the congressional purpose of “protecting and conserving the fisheries of the United States in all waters of Alaska”. 48 U.S.G.A. § 221.
I take the view that § 234, in the absence of express permission granted by the Secretary of the Interior, prohibits both commercial and personal use fishing with commercial gear during the extended closed season. I would affirm the conviction on the ground that appellant violated original Regulation 102.51 by using a gillnet while fishing for personal use during the extended closed period, such gear being specifically prohibited by law.