331 F. Supp. 52

CRARY, District Judge
(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The Temporary Restraining Order referred to in the majority Memorandum and Order, which was revoked on February 16, 1971, by reason of the expiration of the 30-day period from publication of the Regulations on January 13, 1971, was issued and revoked by the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 Regulations 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 arguments concerning the proposed regulations to the Assistant General Counsel, Mailability Division, Post Office Department, Washington, D. C. 20260, at any time prior to the 30th day following the date of publication of this notice in the Federal Register.”
I adhere to my prior ruling and conclude that the effective date of the Regulations should not be delayed until 30 days after a re-publication thereof. Borg-Johnson Electronics v. Christenberry, D.C., 169 F.Supp. 746, 752.
The evidence before the Court does not disclose that the cost of the Post Office list of persons not desiring to receive the material involved, as provided in the Regulations (§ 124.9(d) (1) ), is confiscatory or would result in irreparable injury to any of the plaintiffs required to purchase the list, and I conclude that due process is not violated by the Regulations issued pursuant to provisions of the Act assessing the cost of its Regulations to the industry.
I would enjoin only the requiring of the purchase or use of the Post Office list by anyone who mails sexually oriented advertisements only to persons who have specifically requested in writing to receive same (see affidavit of plaintiff William Summers), on the condition that such material was not pornographic or obscene.
For the foregoing reasons I dissent from the opinion and order of the majority.

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