PRINTER'S NO.  2511

  

THE GENERAL ASSEMBLY OF PENNSYLVANIA

  

HOUSE BILL

 

No.

1077

Session of

2011

  

  

INTRODUCED BY RAPP, KULA, TURZAI, STERN, DENLINGER, CUTLER, ADOLPH, AUMENT, BAKER, BARBIN, BARRAR, BEAR, BENNINGHOFF, BLOOM, BOBACK, BOYD, BROOKS, R. BROWN, CALTAGIRONE, CAUSER, CHRISTIANA, CLYMER, COX, CREIGHTON, DAY, DiGIROLAMO, DUNBAR, ELLIS, EMRICK, EVANKOVICH, J. EVANS, EVERETT, FLECK, GABLER, GEIST, GIBBONS, GILLEN, GILLESPIE, GINGRICH, GODSHALL, GRELL, GROVE, HACKETT, HAHN, HARHART, HARKINS, HARRIS, HEFFLEY, HELM, HENNESSEY, HESS, HICKERNELL, HORNAMAN, HUTCHINSON, KAUFFMAN, KAVULICH, F. KELLER, KILLION, KNOWLES, KOTIK, KRIEGER, LAWRENCE, LONGIETTI, MAHONEY, MAJOR, MALONEY, MARSHALL, MARSICO, MASSER, METCALFE, METZGAR, MICCARELLI, MICOZZIE, MILLARD, MOUL, MURT, MUSTIO, OBERLANDER, PAYNE, PEIFER, PERRY, PICKETT, PYLE, QUIGLEY, READSHAW, REED, REESE, REICHLEY, ROAE, ROCK, SACCONE, SANTONI, SAYLOR, SCAVELLO, CULVER, SCHRODER, SIMMONS, K. SMITH, S. H. SMITH, SONNEY, STEVENSON, SWANGER, TALLMAN, TAYLOR, THOMAS, TOBASH, TOEPEL, TOOHIL, TRUITT, VEREB, VULAKOVICH AND WATSON, OCTOBER 5, 2011

  

  

REFERRED TO COMMITTEE ON HEALTH, OCTOBER 5, 2011  

  

  

  

AN ACT

  

1

Providing for ultrasound test requirements to determine

2

gestational ages of unborn children; establishing the right

3

to view ultrasound image and ultrasound video of unborn child

4

and the right to observe or hear the fetal heartbeat;

5

providing for powers and duties of the Department of Health

6

and for duties of physicians performing abortions; requiring

7

certain reports to be filed with the Department of Health;

8

imposing administrative sanctions and criminal penalties; and

9

providing for remedies.

10

The General Assembly of the Commonwealth of Pennsylvania

11

hereby enacts as follows:

12

Section 1.  Short title.

13

This act shall be known and may be cited as the Women's

14

Right-to-Know Act.

 


1

Section 2.  Findings.

2

The General Assembly finds and declares as follows:

3

(1)  Many women are unaware of the state of development

4

of their unborn child.

5

(2)  An ultrasound test is a medical procedure commonly

6

utilized during a woman's pregnancy to determine fetal

7

gestational age, fetal measurements, the progress of fetal

8

development and fetal health.

9

(3)  The fetal heartbeat also provides useful information

10

on fetal health.

11

(4)  The factual information provided by ultrasound

12

tests, including fetal heartbeat, is relevant to any decision

13

regarding a pregnancy and is relevant to the State's interest

14

in ensuring that informed consent is provided.

15

(5)  Abortion is a medical procedure and, as such, it

16

requires the informed consent of the woman undergoing the

17

procedure.

18

(6)  A woman considering an abortion has the right to

19

receive complete and accurate information regarding the

20

development and health of her unborn child.

21

(7)  In recognition of the importance of a woman's

22

dignity in making an informed choice, the factual information

23

provided by an ultrasound test should be provided to a woman

24

as an integral part of the informed consent necessary to

25

undergo an abortion.

26

Section 3.  Definitions.

27

The following words and phrases when used in this act shall

28

have the meanings given to them in this section unless the

29

context clearly indicates otherwise:

30

"Abortion."  The use of any means to terminate the clinically

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1

diagnosable pregnancy of a woman with knowledge that the

2

termination by that means will, with reasonable likelihood,

3

cause the death of the unborn child.

4

"Auscultation."  The act of listening for sounds made by

5

internal organs of the fetus, specifically for a fetal

6

heartbeat, utilizing an ultrasound transducer and fetal heart

7

rate monitor.

8

"Department."  The Department of Health of the Commonwealth.

9

"DVD."  A digital versatile disc.

10

"Digital versatile disc."  A laser-encoded plastic medium

11

capable of storing a large amount of digital audio, video and

12

computer data.

13

"Fetus."  An individual organism of the species homo sapiens

14

from fertilization until live birth.

15

"Gestational age."  The age of an unborn child as calculated

16

from the first day of the last menstrual period of the pregnant

17

woman.

18

"Informed consent."  The informed consent provided for under

19

18 Pa.C.S. § 3205 (relating to informed consent).

20

"Medical emergency."  As defined in 18 Pa.C.S. § 3203

21

(relating to definitions).

22

"Patient."  A pregnant woman who is seeking to have an

23

abortion.

24

"Physician."  A person licensed to practice medicine in this

25

Commonwealth. The term includes a medical doctor and a doctor of

26

osteopathy.

27

"Pregnancy."  The female reproductive condition of having a

28

developing fetus in the body, which commences with

29

fertilization.

30

"Pregnant."  Being in the state of pregnancy.

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1

"Ultrasound image."  An image produced through the use of an

2

ultrasound machine which is of sufficient quality to be used in

3

determining gestational age.

4

"Unborn child."  An individual organism of the species homo

5

sapiens from fertilization until live birth.

6

Section 4.  Ultrasound test requirements.

7

(a)  Test and waiting period.--Except as set forth in section

8

10, all of the following apply:

9

(1)  At least 24 hours before an abortion is to be

10

performed, an ultrasound test which produces an ultrasound

11

image shall be performed upon the patient by or for the

12

physician who is to perform the abortion or the referring

13

physician.

14

(2)  The time period under paragraph (1) may run

15

concurrently with the waiting period under 18 Pa.C.S. §

16

3205(a) (relating to informed consent).

17

(b)  List.--The physician who is to perform the abortion or

18

the referring physician shall provide the patient with the list

19

under section 7(a)(3).

20

(c)  Basis of determination.--The ultrasound test shall be

21

used to make an accurate determination of gestational age of the

22

unborn child. Determination of gestational age shall be based

23

upon measurement of the unborn child in a manner consistent with

24

standard medical practice in the community in determining

25

gestational age. When only the gestational sac is visible during

26

an ultrasound test, gestational age may be based upon

27

measurement of the gestational sac.

28

(d)  Documentation of measurements.--

29

(1)  A print of the ultrasound image shall be made to

30

document the measurements which have been taken to determine

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1

the gestational age of the unborn child.

2

(2)  A copy of the print shall be maintained in the

3

patient's medical file at the facility where the abortion is

4

performed for the longer of:

5

(i)  seven years; or

6

(ii)  the extent required by applicable Federal or

7

State law.

8

(e)  Individuals who may perform test.--An ultrasound test

9

may only be performed by one of the following:

10

(1)  A physician.

11

(2)  An individual who meets all of the following:

12

(i)  Regularly conducts ultrasound tests for medical

13

purposes.

14

(ii)  Has documented evidence of satisfactory

15

completion of a course, including a period of direct

16

supervision, in the operation of ultrasound equipment.

17

(iii)  Has documentary evidence of periodic

18

evaluation of proficiency.

19

(f)  Physician instructions.--When the physician who orders

20

the ultrasound test refers the patient to another facility, the

21

physician or a licensed health care professional to whom the

22

physician has delegated responsibility shall, in a face-to-face

23

consultation, do all of the following:

24

(1)  Personally furnish the patient with the following

25

materials to take to the person who will conduct that

26

ultrasound test:

27

(i)  The ultrasound direction sheet prepared under

28

section 7(a)(4).

29

(ii)  The statement to be signed by the patient after

30

her ultrasound test is completed.

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1

(iii)  The statement to be signed by the person

2

conducting the ultrasound test.

3

(2)  Instruct the patient to furnish the information

4

under paragraph (1) to the individual who conducts the

5

ultrasound test.

6

(3)  Advise the patient that she will need to take her

7

statement and the signed statement of the individual who

8

performed the ultrasound test to the physician who is to

9

perform the abortion.

10

(g)  Fees.--

11

(1)  The amount charged for an ultrasound test must be

12

billed separately from the fee for an abortion.

13

(2)  The fee for an abortion must be fully refundable if

14

the abortion does not occur.

15

Section 5.  Right to view ultrasound image and observe fetal

16

heartbeat of unborn child.

17

(a)  Individual performing ultrasound test.--The individual

18

performing the ultrasound test required under section 4 shall do

19

all of the following:

20

(1)  Conduct the ultrasound test, including fetal

21

heartbeat, in a manner which will enable accurate

22

determination of the gestational age and development of the

23

unborn child.

24

(2)  Provide the patient with accurate answers to any

25

questions she may have during the performance of the

26

ultrasound. This paragraph includes the presence of external

27

members, internal organs, cardiac activity and the expected

28

norms for an unborn child of given size or gestational age.

29

(3)  Inform the patient of her right to view the

30

ultrasound test in its entirety while that test is being

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1

performed to determine gestational age.

2

(4)  Inform the patient of her right to observe the fetal

3

heartbeat and, if she exercises that right, make observable

4

the live real-time heartbeat, when present, for the patient

5

to observe. If the auscultation is performed, the patient

6

must also be informed of her right to hear the fetal

7

heartbeat, when present, in live real time.

8

(5)  Position the screen so that the patient is able to

9

view the ultrasound test in its entirety, with a view of her

10

unborn child, while that test is being conducted to determine

11

gestational age. The patient is not required to view the

12

screen.

13

(6)  Provide two prints, in separate sealed envelopes, of

14

the ultrasound image to be used to accurately determine

15

gestational age. One print shall be provided to the patient,

16

and one print shall be provided to the physician who is to

17

perform the abortion.

18

(7)  Sign and date a statement indicating the time of day

19

when the ultrasound test was performed. The statement must

20

read as follows:

21

I performed an ultrasound test including fetal heartbeat

22

on (insert name of patient) on (insert date) at (insert

23

name of facility where ultrasound test was performed). At

24

that time, the gestational age was determined to be

25

weeks and the heart rate was (not present or       beats

26

per minute {mark one}). The ultrasound screen was

27

positioned so that the patient would be able to view the

28

screen in its entirety while the test was being

29

performed. I informed her of her right to view the

30

ultrasound screen in its entirety while the test was

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1

being performed (which she "accepted" or "refused" {mark

2

one}). I provided her with a print of the ultrasound

3

image that will be used to determine gestational age. I

4

informed her of her right to observe or hear the fetal

5

heartbeat because auscultation was performed (which she

6

"accepted" or "refused" {mark one}). (Print and sign name

7

of person performing ultrasound test and insert date of

8

signature and the time of day the test was performed.)

9

(8)  Maintain a copy of the statement under paragraph (7)

10

in the patient's medical file at the facility where the

11

abortion is performed.

12

(9)  Instruct the patient to:

13

(i)  sign and date her statement; and

14

(ii)  take her statement and the signed and dated

15

statement of the individual who performed the ultrasound

16

test to the physician who will perform the abortion.

17

(b)  Written statement from patient.--

18

(1)  Except as set forth in section 10, the patient must

19

sign a statement which reads as follows:

20

I was provided with an opportunity to view the ultrasound

21

test in its entirety, while that test was being

22

performed. I was given a print of the ultrasound image. I

23

was provided the opportunity to observe the fetal

24

heartbeat. (Print and sign name of patient and insert

25

date of signature.)

26

(2)  The statement must be in bold print of at least ten-

27

point type and the paper containing such statement must only

28

include material which is necessary to carry out the purpose

29

of this subsection.

30

(3)  A copy of the statement, signed and dated by the

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1

patient and with the patient's name printed on it, shall be

2

maintained in the patient's medical file at the facility

3

where the abortion is performed.

4

Section 6.  Ultrasound video.

5

(a)  Scope.--This section applies if the abortion is not

6

performed within 14 days of the performance of the ultrasound

7

test under section 4.

8

(b)  Physician duties.--

9

(1)  The physician who performs the abortion shall, in

10

person, do all of the following:

11

(i)  Inform the patient of the probable gestational

12

age of the unborn child at the time the abortion is

13

performed.

14

(ii)  Record the fetal heart rate and note if the

15

heart rate is within a normal range for the estimated

16

gestational age.

17

(iii)  Offer the patient an opportunity to view an

18

ultrasound video which accurately depicts an unborn child

19

at the stage in pregnancy when her abortion is performed.

20

(2)  The duties under paragraph (1) are discharged by

21

providing the patient with:

22

(i)  an opportunity to view, on site, an appropriate

23

ultrasound video approved by the department; or

24

(ii)  the DVD or viewable electronic medium under

25

section 7(a)(5).

26

(c)  Written statement.--

27

(1)  The patient must sign a statement which reads as

28

follows:

29

I was informed of the probable gestational age of my

30

unborn child at the time the abortion was performed. I

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1

was provided an opportunity to view an ultrasound video

2

approved and provided by the Department of Health. (Print

3

and sign name of pregnant woman and insert date of

4

signature.)

5

(2)  The physician who performs the abortion shall

6

personally provide the patient with the information required

7

by this section and shall sign a statement which reads as

8

follows:

9

Prior to performing an abortion on (insert name of

10

pregnant woman) at (insert name of facility), I

11

personally informed her of the probable gestational age

12

of her unborn child and I provided her with an

13

opportunity to view an ultrasound video and observe or

14

hear a fetal heartbeat which accurately depicted an

15

unborn child at the same stage of pregnancy when the

16

abortion was performed and she (insert "accepted" or

17

"declined") this opportunity. (Print and sign name of

18

physician and insert date of signature.)

19

(d)  Documentation.--A copy of the signed and dated

20

statements required under subsection (c) shall be maintained in

21

the patient's medical file at the facility where the abortion is

22

performed.

23

Section 7.  Department.

24

(a)  Duties.--The department shall do all of the following to

25

implement this act:

26

(1)  Obtain from physicians information necessary to

27

prepare the report required under section 9.

28

(2)  Prepare forms for statements and reports required

29

under this act and place the forms on a departmental Internet

30

website.

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1

(3)  Prepare a geographically indexed list of health care

2

providers, facilities and clinics that perform ultrasounds

3

which provide ultrasound images, including those that offer

4

ultrasound services free of charge. This paragraph requires

5

contact information for each provider, facility or clinic,

6

including telephone numbers and, if available, Internet

7

website addresses.

8

(4)  Prepare an ultrasound direction sheet which sets

9

forth the requirements of section 5(a).

10

(5)  Approve a DVD or other viewable electronic medium of

11

ultrasound videos which it determines provides accurate and

12

clear ultrasound video images of unborn children and audible

13

fetal heartbeats in weekly stages, or as close to those

14

stages as possible, for patients to view to learn what an

15

unborn child's development will be like at the time of the

16

scheduled abortion.

17

(6)  Transmit a notice of approval under paragraph (5) to

18

the Legislative Reference Bureau for publication in the

19

Pennsylvania Bulletin.

20

(7)  Submit an annual report to the Secretary of the

21

Senate and the Chief Clerk of the House of Representatives by

22

March 31 based upon the information obtained under this act

23

for the preceding calendar year. The report shall be

24

available for public inspection and copying. The report under

25

this paragraph shall not contain information which discloses

26

the identity of a patient. The report shall include the

27

following information:

28

(i)  The gestational ages of unborn children:

29

(A)  determined by ultrasound image under section

30

4; and

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1

(B)  set forth in categories beginning with those

2

at eight weeks and proceeding forward in two-week

3

increments.

4

(ii)  The number of instances when the ultrasound

5

test referred to under section 4 was performed at the

6

facility where the abortion was performed.

7

(iii)  The number of instances when exemptions were

8

claimed under section 10(b) and (c), listed separately by

9

the type of exemption.

10

(b)  Powers.--The department may promulgate regulations to

11

implement this act.

12

Section 8.  Duties of physicians performing abortion and

13

abortion facilities.

14

(a)  Prerequisites.--Except as set forth in section 10, an

15

abortion may not be performed unless all of the following apply:

16

(1)  The physician performing the abortion possesses a

17

copy of:

18

(i)  the print of the ultrasound image under section

19

5(a)(6);

20

(ii)  the statement under section 5(b); and

21

(iii)  if applicable, the statement under section

22

6(c).

23

(2)  The physician performing the abortion, in person,

24

informs the patient of the probable gestational age of the

25

unborn child.

26

(3)  At least 24 hours have elapsed since the time when

27

the ultrasound test required under section 4 was performed,

28

as indicated in the statement required under section 5(b).

29

(b)  Physician statement.--If an exemption under section 10

30

applies, the physician who performs the abortion shall sign and

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1

date the statement set forth below:

2

The exemption set forth in section 10(insert "(a)", "(b)" or

3

"(c)") applies to the abortion that I performed upon (insert

4

name of patient). I made this determination on the basis of

5

the following: (insert medical factors dictating application

6

of exemption). (Print and sign physician's name and insert

7

date of signature.)

8

(c)  Recordkeeping.--

9

(1)  The physician statement required by subsection (b)

10

and the print of the ultrasound test or another method of

11

storing the ultrasound image shall be placed in the medical

12

file of the patient at the facility where the abortion is

13

performed.

14

(2)  The items under paragraph (1) shall be maintained

15

for the longer of:

16

(i)  seven years; or

17

(ii)  the extent required by applicable Federal or

18

State law.

19

Section 9.  Reports by physicians.

20

(a)  Duty of physicians to file.--A physician who performs an

21

abortion shall file a signed report with the department. The

22

report shall not identify the patient by name and shall include

23

the following information:

24

(1)  The name of the physician who caused the ultrasound

25

test to be performed, the name of the person who performed

26

the ultrasound test and the facility where the ultrasound

27

test was performed.

28

(2)  The date the ultrasound test was performed.

29

(3)  The name of the physician who performed the abortion

30

and the facility where the abortion was performed.

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1

(4)  The date the abortion was performed.

2

(5)  The gestational age of the unborn child as

3

determined by the ultrasound image required under section 4.

4

(6)  Whether the patient declined the opportunity to:

5

(i)  view the ultrasound image; or

6

(ii)  observe or hear the fetal heartbeat.

7

(7)  The basis for the medical judgment of the physician

8

that a medical emergency existed.

9

(8)  The basis for the medical judgment of the physician

10

that an exemption under section 10(b) applies.

11

(9)  Whether section 6 applied to the patient and whether

12

she declined the opportunity to view the video.

13

(b)  Filing deadline.--Reports under this section shall be

14

filed with the department within 15 days after the end of the

15

month.

16

(c)  Confidentiality.--Reports under this section may not

17

contain information which discloses the identity of a patient.

18

Section 10.  Exemptions.

19

(a)  Medical emergencies.--Sections 4, 5 and 8 shall not

20

apply if a medical emergency exists.

21

(b)  Gestational age.--Sections 4, 5 and 8 shall not apply

22

if, in the physician's reasonable medical opinion, the probable

23

gestational age of the unborn child is less than eight weeks.

24

(c)  Rape or incest.--Sections 4, 5 and 8 shall not apply if

25

the patient's pregnancy is the result of rape or incest.

26

Section 11.  Administrative sanctions.

27

A physician who knowingly violates this act shall be deemed

28

to have engaged in unprofessional conduct and shall be subject

29

to appropriate disciplinary action under:

30

(1)  the act of October 5, 1978 (P.L.1109, No.261), known

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1

as the Osteopathic Medical Practice Act; or

2

(2)  the act of December 20, 1985 (P.L.457, No.112),

3

known as the Medical Practice Act of 1985.

4

Section 12.  Criminal penalties.

5

(a)  Specific violations.--

6

(1)  A physician who knowingly violates section 4, 5, 6

7

or 8 and performs an abortion commits a misdemeanor of the

8

third degree.

9

(2)  An individual who knowingly violates section 4

10

commits a misdemeanor of the third degree.

11

(3)  An individual other than a patient who executes a

12

written statement required by this act with knowledge that

13

the statement is false commits a misdemeanor of the third

14

degree.

15

(b)  Disclosure of patient's identity.--

16

(1)  Except as set forth in paragraph (2), all of the

17

following apply:

18

(i)  A health care provider that learns of the

19

identity of a patient may not disclose the identity of

20

the patient.

21

(ii)  A public employee or official that learns of

22

the identity of a patient may not disclose the identity

23

of the patient.

24

(2)  Paragraph (1) does not apply if disclosure:

25

(i)  is appropriate to carry out the purposes of this

26

act; or

27

(ii)  is made with the consent of the patient.

28

(3)  A person that knowingly violates this subsection

29

commits a misdemeanor of the second degree.

30

Section 13.  Civil remedies.

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1

(a)  Equity.--

2

(1)  This subsection applies to any of the following that

3

knowingly performs an abortion in violation of this act:

4

(i)  A physician.

5

(ii)  A facility at which an abortion is performed.

6

(2)  Any of the following may seek an injunction against

7

a person specified in paragraph (1):

8

(i)  The woman who was a patient.

9

(ii)  The district attorney in the county where an

10

abortion was performed.

11

(iii)  The Attorney General.

12

(3)  An injunction under this section shall prevent the

13

person from performing further abortions.

14

(b)  Law.--If a physician or health care provider performs an

15

abortion in violation of this act, the physician or health care

16

provider shall be liable for actual damages as follows:

17

(1)  Except as set forth in paragraph (2), to the

18

patient.

19

(2)  To the parent or legal guardian of a patient who, at

20

the time of the abortion:

21

(i)  is under 18 years of age and not emancipated; or

22

(ii)  is incapacitated under 20 Pa.C.S. § 5512.1

23

(relating to determination of incapacity and appointment

24

of guardian).

25

(c)  Attorney fees.--The court shall award attorney fees as

26

follows:

27

(1)  To a successful petitioner under subsection (a)(2).

28

(2)  To a successful plaintiff under subsection (b).

29

Section 14.  Construction.

30

Nothing in this act shall be deemed to do any of the

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1

following:

2

(1)  Eliminate the application of the 24-hour waiting

3

period under 18 Pa.C.S. § 3205 (relating to informed

4

consent).

5

(2)  Limit or repeal any provision of 18 Pa.C.S. Ch. 32

6

(relating to abortion).

7

Section 48.  Severability.

8

The provisions of this act are severable. If any provision of

9

this act or its application to any person or circumstance is

10

held invalid, the invalidity shall not affect other provisions

11

or applications of this act which can be given effect without

12

the invalid provision or application.

13

Section 49.  Applicability.

14

The requirements of this act shall not be deemed inoperative

15

prior to the preparation of forms by the department under

16

section 7(a)(2).

17

Section 50.  Effective date.

18

This act shall take effect as follows:

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(1)  The following provisions shall take effect

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immediately:

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(i)  Section 7.

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(ii)  Section 49.

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(iii)  This section.

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(2)  Section 6 shall take effect 30 days after the

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publication of the notice under section 7(a)(6).

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(3)  The remainder of this act shall take effect in 90

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days.

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