Blount

(dissenting in part).

The Temporary Restraining Order referred to in the majority Memorandum and Order, which was revoked on February 16, 1971, by reason of the expiration of the 30-day period from publication of the Regulations on January 13, 1971, was issued and revoked by the undersigned.

Although the law requires the publication of substantive regulations 30 days before the effective date of the statute ( 5 U.S.C. § 553 (d) ), the subject Regula *54 tions did not go into effect before the expiration of 30 days from the date of publication on January 13, 1971. It is also to be noted that portions of these Regulations were published on October 10,. 1970, and December 10, 1970 (Pages B-30 and B-31, Appendix A to defendants’ opposition memorandum filed February 16, 1971). The portions of the Regulations so published stated the requirements as to the printing, on the envelope containing the subject material, of the sender’s name and address and the notice “Sexually Oriented Ad.” By notice published in the Federal Register on March 25, 1971, the Post Office Department, under “Notice of Proposed Rule Making,” invited interested persons to “ * * * submit written data, views and…

MEMORANDUM AND ORDER FOR PRELIMINARY INJUNCTION

On March 5, 1971, this three-judge District Court heard oral argument on plaintiffs’ motion for preliminary in *53 junction enjoining enforcement of sections 3010 and 3011 of Title 39, United States Code, and sections 1735 through 1737 of Title 18, United States Code, together with regulations issued by the Post Office Department thereunder, 39 C.F.R. § 124.9 . The statute and regulations in question are concerned with the mailing of “sexually oriented advertisements.” Both sides had previously submitted memoranda of facts and law and affidavits in support of their respective positions.

The Temporary Restraining Order, issued by reason of the failure of the Post Office Department to publish regulations thirty days prior to their effective date, as required by law, was revoked on February 16, 1971, after expiration of the thirty-day period, and there is no Temporary Restraining Order in effect.

It was stipulated by the parties that the evidence considered on the preliminary injunction be also considered as evidence in the trial on the merits. The hearing on the motion for preliminary injunction was deemed to be consolidated with…