THE GENERAL ASSEMBLY OF PENNSYLVANIA

HOUSE BILL

INTRODUCED BY MARSICO, CALTAGIRONE, STEPHENS, TURZAI, AUMENT, BAKER, BARBIN, BARRAR, BOBACK, BOYD, CLYMER, D. COSTA, DELOZIER, ELLIS, EVERETT, GEIST, GILLESPIE, GINGRICH, GRELL, GROVE, HACKETT, HARPER, HARRIS, HELM, HENNESSEY, HICKERNELL, KAUFFMAN, M. K. KELLER, KILLION, KNOWLES, KOTIK, MAJOR, MILLARD, MILLER, MILNE, MOUL, O'NEILL, PAYNE, PETRI, PICKETT, PYLE, QUINN, ROCK, SAYLOR, SCAVELLO, TAYLOR, TOBASH, TOOHIL, VEREB, VULAKOVICH, WATSON, CARROLL, HESS, SWANGER AND CREIGHTON, MAY 21, 2012

AS REPORTED FROM COMMITTEE ON JUDICIARY, HOUSE OF REPRESENTATIVES, AS AMENDED, JUNE 5, 2012   

AN ACT

Amending Title 18 (Crimes and Offenses) of the Pennsylvania

Consolidated Statutes, further providing for definitions, for

exceptions to prohibition of interception and disclosure of

communications, for possession, sale, distribution,

manufacture or advertisement of electronic, mechanical or

other devices, for issuance of order and effect; providing

for target-specific orders; and further providing for

emergency hostage and barricade situations, for investigative

disclosure or use of contents of wire, electronic or oral

communications or derivative evidence, for evidentiary

disclosure of contents of intercepted communication or

derivative evidence, for requirements for governmental

access, for cost reimbursement, for mobile tracking devices,

for application for an order for use of certain devices and

for issuance of an order for use of certain devices.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1.  The definitions of "electronic communication

service," "electronic communication system," "oral

communication," "trap and trace device" and "wire communication"

in section 5702 of Title 18 of the Pennsylvania Consolidated

Statutes are amended and the section is amended by adding

definitions to read:

§ 5702.  Definitions.

As used in this chapter, the following words and phrases

shall have the meanings given to them in this section unless the

context clearly indicates otherwise:

* * *

"Communication service."  Any service which provides to users

the ability to send or receive wire or electronic

communications.

"Communication system."  Any wire, radio, electromagnetic,

photo-optical or photoelectronic facilities for the transmission

of communications, and any computer facilities or related

electronic equipment for the electronic storage of such

communications.

"Constructive notice."  Notice provided by any means

sufficient to apprise a reasonable person that an oral

communication is or may be subject to interception.

* * *

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"Crime of violence."  Any of the following:

(1)  Any of the following crimes:

(i)  Murder in any degree.

(ii)  A crime of violence as defined in 42 Pa.C.S. §

9714(g) (relating to sentences for second and subsequent

offenses).

(iii)  Intimidation of witness or victim.

(iv)  Retaliation against witness, victim or party.

(v)  Criminal attempt, criminal conspiracy or

criminal solicitation to commit any of the offenses under

this paragraph.

(2)  Any crime requiring registration under 42 Pa.C.S.

Ch. 97 Subch. H (relating to registration of sexual

offenders).

(3)  Any offense equivalent to an offense under paragraph

(1) or (2) under the laws of this Commonwealth in effect at

the time of the commission of that offense or under the laws

of another jurisdiction.

* * *

["Electronic communication service."  Any service which

provides to users the ability to send or receive wire or

electronic communications.

"Electronic communication system."  Any wire, radio,

electromagnetic, photo-optical or photoelectronic facilities for

the transmission of electronic communications, and any computer

facilities or related electronic equipment for the electronic

storage of such communications.]

* * *

"Mobile communications tracking information."  Information

generated by a communication common carrier or a communication

service which indicates the location of an electronic device

supported by the communication common carrier or communication

service.

* * *

"Oral communication."  Any oral communication uttered by a

person possessing an expectation that such communication is not

subject to interception under circumstances justifying such

expectation. An expectation is not justified if it is

objectively reasonable that what is spoken will or could be

overheard by another person not directly participating in the

communication, if actual or constructive notice has been given

that audio recording or other interception is or may be

occurring or if equipment commonly used for video and audio

recording is plainly visible. The term does not include any

electronic communication.

* * *

"Signed, written record."  A memorialization of the contents

of any wire, electronic or oral communication intercepted in

accordance with this subchapter, including the name of the

investigative or law enforcement officer who transcribed the

record, kept in electronic, paper or any form. The signature of

the transcribing officer shall not be required to be written,

but may be electronic.

* * *

"Trap and trace device."  A device which captures the

incoming electronic or other impulses which identify the

originating number of an instrument or device from which a wire

or [electronic] communication was transmitted. The term includes

caller ID, deluxe caller ID or any other features available to

ascertain the telephone number, location or subscriber

information of a facility contacting the facility whose

communications are to be intercepted.

* * *

"Wire communication."  Any aural transfer made in whole or in

part through the use of facilities for the transmission of

communication by wire, cable or other like connection between

the point of origin and the point of reception, including the

use of such a connection in a switching station, furnished or

operated by a telephone, telegraph or radio company for hire as

a communication common carrier. [The term includes any

electronic storage of such communication.]

Section 2.  Section 5704(2)(ii), (12)(ii), (13)(i)(B) and

(14)(i)(B) of Title 18 are amended, paragraph (2) is amended by

adding a subparagraph and the section is amended by adding a

paragraph to read:

§ 5704.  Exceptions to prohibition of interception and

disclosure of communications.

It shall not be unlawful and no prior court approval shall be

required under this chapter for:

* * *

(2)  Any investigative or law enforcement officer or any

person acting at the direction or request of an investigative

or law enforcement officer to intercept a wire, electronic or

oral communication involving suspected criminal activities,

including, but not limited to, the crimes enumerated in

section 5708 (relating to order authorizing interception of

wire, electronic or oral communications), where:

(i)  the communication was knowingly transmitted in

any fashion to a third party by its author or another

sender and an investigative or law enforcement officer

legally obtains from the third party the communication or

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a copy of the communication or the device to which it is

sent from the third party. Notwithstanding any other

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provision of this chapter, an investigative or law

enforcement officer may contemporaneously intercept and

respond to communications sent to a third party, if he

has legally obtained the device to which the

communications are being sent, without disclosing his

identity to the sender or author;

(ii)  one of the parties to the communication has

given prior consent to such interception. However, no

interception under this paragraph shall be made unless

the Attorney General or a deputy attorney general

designated in writing by the Attorney General, or the

district attorney, or an assistant district attorney

designated in writing by the district attorney, of the

county wherein the interception is to be [made] 

initiated, has reviewed the facts and is satisfied that

the consent is voluntary and has given prior approval for

the interception; however, such interception shall be

subject to the recording and record keeping requirements

of section 5714(a) (relating to recording of intercepted

communications) and that the Attorney General, deputy

attorney general, district attorney or assistant district

attorney authorizing the interception shall be the

custodian of recorded evidence obtained therefrom;

* * *

(12)  Any investigative or law enforcement officer or any

person acting at the direction or request of an investigative

or law enforcement officer to intercept a wire or oral

communication involving suspected criminal activities where

the officer or the person is a party to the communication and

there is reasonable cause to believe that:

* * *

(ii)  that party:

(A)  [will] may resist with the use of weapons;

or

(B)  is threatening suicide or harm to himself or 

others.

(13)  An investigative officer, a law enforcement officer

or employees of the Department of Corrections for State

correctional facilities to intercept, record, monitor or

divulge any telephone calls from or to an inmate in a

facility under the following conditions:

(i)  The Department of Corrections shall adhere to

the following procedures and restrictions when

intercepting, recording, monitoring or divulging any

telephone calls from or to an inmate in a State

correctional facility as provided for by this paragraph:

* * *

(B)  Unless otherwise provided for in this

paragraph, after intercepting or recording a

telephone conversation, only the superintendent,

warden or a designee of the superintendent or warden

or other chief administrative official or his or her

designee, or law enforcement officers shall have

access to that recording.

* * *

(14)  An investigative officer, a law enforcement officer

or employees of a county correctional facility to intercept,

record, monitor or divulge any telephone calls from or to an

inmate in a facility under the following conditions:

(i)  The county correctional facility shall adhere to

the following procedures and restrictions when

intercepting, recording, monitoring or divulging any

telephone calls from or to an inmate in a county

correctional facility as provided for by this paragraph:

* * *

(B)  Unless otherwise provided for in this

paragraph, after intercepting or recording a

telephone conversation, only the superintendent,

warden or a designee of the superintendent or warden

or other chief administrative official or his or her

designee, or law enforcement officers shall have

access to that recording.

* * *

(17)  Any individual to intercept the contents of any

wire, electronic or oral communication if that person is

under a reasonable suspicion that the intercepted party is

committing, about to commit or has committed a crime of

violence or felony of the first degree and there is reason to

believe that evidence of the crime may be obtained from the

interception. This paragraph shall not apply to interceptions

made at the prior direction of any law enforcement officer.

Section 3.  Section 5705 heading of Title 18 is amended and

the section is amended by adding a paragraph to read:

§ 5705.  Possession, sale, distribution, manufacture or

advertisement of electronic, mechanical or other

devices and telecommunication identification

interception devices.

Except as otherwise specifically provided in section 5706

(relating to exceptions to prohibitions in possession, sale,

distribution, manufacture or advertisement of electronic,

mechanical or other devices), a person is guilty of a felony of

the third degree if he does any of the following:

* * *

(5)  Knowingly Intentionally possesses a

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telecommunication identification interception device.

Section 4.  Sections 5712(a) introductory paragraph and (f)

of Title 18 are amended to read:

§ 5712.  Issuance of order and effect.

(a)  Authorizing orders.--[Each] An order authorizing the

interception of any wire, electronic or oral communication shall

state the following:

* * *

(f)  Assistance.--An order authorizing the interception of a

wire, electronic or oral communication shall, upon request of

the applicant, direct that a provider of [electronic] 

communication service shall furnish the applicant forthwith all

information, facilities and technical assistance necessary to

accomplish the interception unobtrusively and with a minimum of

interference with the services that such service provider is

affording the person whose communications are to be intercepted.

The obligation of a provider of [electronic] communication

service under such an order may include, but is not limited to,

installation of a pen register or of a trap and trace device

[and], providing caller ID, deluxe caller ID or any other

features available to ascertain the telephone number, location

or subscriber information of a facility contacting the facility

whose communications are to be intercepted, disclosure of a

record or other information otherwise available under section

5743 (relating to requirements for governmental access),

including conducting an in-progress trace during an

interception, provided that such obligation of a provider of

[electronic] communications service is technologically feasible.

The order shall apply regardless of whether the electronic

service provider is headquartered within this Commonwealth, if

the interception is otherwise conducted within this Commonwealth

as provided under this chapter. The order regarding disclosure

of a record or other information otherwise available under

section 5743 shall apply to all electronic service providers who

service facilities which contact or are contacted by the

facility whose communications are to be intercepted, regardless

of whether the order specifically names any provider of

communication service. The order may specify the period of time

an electronic service provider has to furnish to the applicant

who requests disclosure of a record or other information

otherwise available under section 5743. Any provider of

[electronic] communication service furnishing such facilities or

technical assistance shall be compensated therefor by the

applicant for reasonable expenses incurred in providing the

facilities or assistance. The service provider shall be immune

from civil and criminal liability for any assistance rendered to

the applicant pursuant to this section.

* * *

Section 5.  Title 18 is amended by adding a section to read:

§ 5712.1.  Target-specific orders.

(a)  Target-specific wiretaps.--The requirements of sections

5712(a)(3) (relating to issuance of order and effect) and

5709(3)(iv) and (v) (relating to application for order) shall

not apply if:

(1)  In the case of an application with respect to the

interception of an oral communication, all of the following

apply:

(i)  The application contains a full and complete

statement as to why specification is not practical and

identifies the person committing the offense and whose

communications are to be intercepted.

(ii)  The judge finds the specification is not

practical.

(2)  In the case of an application with respect to a wire

or electronic communication, all of the following apply:

(i)  The application identifies the person believed

to be committing the offense and whose communications are

to be intercepted and the applicant makes a showing that

there is probable cause to believe that the person's

actions could have the effect of thwarting interception

by changing facilities or devices.

(ii)  The judge finds that the purpose has been

adequately shown.

(b)  Supplementary orders.--Following the issuance of a

target-specific wiretap order, the judge shall sign

supplementary orders upon request and in a timely manner,

authorizing the investigative or law enforcement officers or

agency to intercept additional communications devices or

facilities upon a showing of reasonable suspicion that all of

the following apply:

(1)  The target of the original order has in fact changed

communications devices or facilities or is presently using

additional communications devices, communications facilities

or places.

(2)  The target of the original order is likely to use

the specified communications device or facility for criminal

purposes similar to or related to those specified in the

original order.

(c)  Application for supplementary orders.--An application

for a supplementary order shall contain all of the following:

(1)  The identity of the investigative or law enforcement

officers or agency to whom the authority to intercept wire,

electronic or oral communications is given and the name and

official identity of the person who made the application.

(2)  The identity of or a particular description of the

person, if known, whose communications are to be intercepted.

(3)  The period of time during which the interception is

authorized, including a statement as to whether or not the

interception shall automatically terminate when the described

communication has been first obtained.

(4)  A showing of reasonable suspicion that the target of

the original order has in fact changed communications devices

or facilities.

(5)  A showing of reasonable suspicion that the target of

the original order is likely to use the additional facility

or device or place for criminal purposes similar to or

related to those specified in the original order.

(d)  Time limits.-–A supplementary order shall not act as an

extension of the time limit identified in section 5712(b).

(e)  Responsibility.--The order shall require the Attorney

General or the district attorney, or their designees, to be

responsible for the supervision of the interception.

(f)  Progress reports.--If an order authorizing an

interception is entered, the order may require reports to be

made to the judge who issued the order showing what progress has

been made toward achievement of the authorized objective and the

need for continued interception. The reports shall be made at

intervals as the judge may require.

(g)  Final report.--If an interception is authorized under

this section, a complete written list of names of participants

and evidence of offenses discovered, including those not stated

in the application for order, shall be filed with the court as

soon as practical after the authorized interception is

terminated.

(h)  Assistance.--

(1)  An order authorizing the interception of a wire,

electronic or oral communication shall, upon request of the

applicant, direct that a provider of communication service

furnish the applicant with all information, facilities and

technical assistance necessary to accomplish the interception

unobtrusively and with a minimum of interference with the

services that the service provider is affording the person

whose communications are to be intercepted.

(2)  The obligation of a provider of communication

service under an order may include installation of a pen

register or trap and trace device and disclosure of a record

or other information otherwise available under section 5743

(relating to requirements for governmental access), including

conducting an in-progress trace during an interception, if

the obligation of a provider of communications service is

technologically feasible.

(3)  A provider of communication service furnishing

facilities or technical assistance shall be compensated by

the applicant for reasonable expenses incurred in providing

the facilities or assistance.

(4)  A service provider shall be immune from civil and

criminal liability for any assistance rendered to an

applicant under this section.

(i)  Entry by law enforcement officers.--An order authorizing

the interception of a wire, electronic or oral communication

shall, if requested, authorize the entry of premises or

facilities specified under subsection (c)(3) or premises

necessary to obtain access to the premises or facilities

specified under subsection (c)(3) by law enforcement officers

specified under subsection (c)(1) as often as necessary solely

for the purposes of installing, maintaining or removing an

electronic, mechanical or other device, if all of the following

apply:

(1)  The entry is reasonably necessary to accomplish the

purposes of this subchapter.

(2)  The judge who issues the order is notified of the

time and method of each entry prior to entry within 48 hours

of entry.

Section 6.  Section 5713.1(d) of Title 18 is amended to read:

§ 5713.1.  Emergency hostage and barricade situations.

* * *

(d)  Definitions.--As used in this section, the following

words and phrases shall have the meanings given to them in this

subsection:

"Emergency situation."  Any situation where:

(1)  a person is holding a hostage and is threatening

serious physical injury [will] and may resist with the use of

weapons; or

(2)  a person has barricaded himself and taken a position

of confinement to avoid apprehension and:

(i)  has [threatened] the ability to resist with the

use of weapons; or

(ii)  is threatening suicide or harm to himself or 

others.

"Supervising law enforcement officer."

(1)  For designations by a district attorney, any law

enforcement officer trained pursuant to section 5724

(relating to training) to carry out interceptions under this

section who has attained the rank of lieutenant or higher in

a law enforcement agency within the county or who is in

charge of a county law enforcement agency.

(2)  For designations by the Attorney General, any member

of the Pennsylvania State Police trained pursuant to section

5724 to carry out interceptions under this section and

designated by the Commissioner of the Pennsylvania State

Police who:

(i)  has attained the rank of lieutenant or higher;

or

(ii)  is in charge of a Pennsylvania State Police

barracks.

Section 7.  Section 5717(a) of Title 18 is amended and the

section is amended by adding subsections to read:

§ 5717.  Investigative disclosure or use of contents of wire,

electronic or oral communications or derivative

evidence.

(a)  Law enforcement personnel.--Any investigative or law

enforcement officer who, under subsection (a.1) [or (b)], (a.2),

(b) or (c), has obtained knowledge of the contents of any wire,

electronic or oral communication, or evidence derived therefrom,

may disclose such contents or evidence to another investigative

or law enforcement officer to the extent that such disclosure is

appropriate to the proper performance of the official duties of

the officer making or receiving the disclosure.

* * *

(a.2)  Civilians.--Any person other than an investigative or

law enforcement officer who, as party to the communication, has

obtained knowledge of the contents of any wire, electronic or

oral communication, or evidence derived from any wire,

electronic or oral communication, may disclose the contents or

evidence to an investigative or law enforcement officer, if the

contents or evidence is evidence of a crime of violence or a

felony of the first degree.

* * *

(c)  Otherwise authorized personnel.--Any person who, by any

means authorized by the laws of another state or the Federal

Government, has obtained knowledge of the contents of any wire,

electronic or oral communication, or evidence derived from any

wire, electronic or oral communication, may disclose the

contents or evidence to an investigative or law enforcement

officer and may disclose the contents or evidence where

otherwise admissible while giving testimony under oath or

affirmation in any proceeding in any court of this Commonwealth.

Section 8.  Section 5721.1(a) of Title 18 is amended by

adding a paragraph to read:

§ 5721.1.  Evidentiary disclosure of contents of intercepted

communication or derivative evidence.

(a)  Disclosure in evidence generally.--

* * *

(4)  Notwithstanding any provisions of this subchapter 

and if the knowledge was obtained from a person not acting at

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the direction or with the knowledge and consent of law

enforcement, any law enforcement or investigative officer who

has obtained knowledge of the contents of any wire,

electronic or oral communication, or evidence derived from

any wire, electronic or oral communication, may disclose the

contents or evidence in any matter related to any criminal,

quasi-criminal, forfeiture, administrative enforcement or

professional disciplinary proceedings as follows:

(i)  In any court, board or agency of this

Commonwealth, another state or the United States.

(ii)  Before any Federal or state grand jury or

investigating grand jury on the condition that the

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knowledge was obtained from a person not acting at the

direction or with the knowledge and consent of law

enforcement.

* * *

Section 9.  Section 5743(a) and (b) of Title 18 are amended

to read:

§ 5743.  Requirements for governmental access.

(a)  Contents of [electronic] communications in electronic

storage.--Investigative or law enforcement officers may require

the disclosure by a provider of [electronic] communication

service of the contents of [an electronic] a communication which

is in electronic storage in [an electronic] a communication

system for:

(1)  One hundred eighty days or less only pursuant to a

warrant issued under the Pennsylvania Rules of Criminal

Procedure.

(2)  More than 180 days by the means available under

subsection (b).

(b)  Contents of [electronic] communications in a remote

computing service.--

(1)  Investigative or law enforcement officers may

require a provider of remote computing service to disclose

the contents of any [electronic] communication to which this

paragraph is made applicable by paragraph (2):

(i)  without required notice to the subscriber or

customer if the investigative or law enforcement officer

obtains a warrant issued under the Pennsylvania Rules of

Criminal Procedure; or

(ii)  with prior notice from the investigative or law

enforcement officer to the subscriber or customer if the

investigative or law enforcement officer:

(A)  uses an administrative subpoena authorized

by a statute or a grand jury subpoena; or

(B)  obtains a court order for the disclosure

under subsection (d);

except that delayed notice may be given pursuant to section

5745 (relating to delayed notice).

(2)  Paragraph (1) is applicable with respect to [an

electronic] a communication which is held or maintained on

that service:

(i)  On behalf of and received by means of electronic

transmission from, or created by means of computer

processing of communications received by means of

electronic transmission from, a subscriber or customer of

the remote computing service.

(ii)  Solely for the purpose of providing storage or

computer processing services to the subscriber or

customer, if the provider is not authorized to access the

contents of any such communication for the purpose of

providing any services other than storage or computer

processing.

* * *

Section 10.  Section 5746 of Title 18 is amended by adding a

subsection to read:

§ 5746.  Cost reimbursement.

* * *

(d)  Regulations.--The Attorney General shall promulgate

regulations to implement this section.

Section 11.  Sections 5761(b) and (c)(4), 5772(a) and 5773(a)

and (c) of Title 18 are amended to read:

§ 5761.  Mobile tracking devices.

* * *

(b)  Jurisdiction.--Orders permitted by this section may

authorize the use of mobile tracking devices [within the

jurisdiction of the court of common pleas, and outside that

jurisdiction,] if the device is installed and monitored within

[the jurisdiction of the court of common pleas.] this

Commonwealth. The court issuing the order must have jurisdiction

over the offense under investigation.

(c)  Standard for issuance of order.--An order authorizing

the use of one or more mobile tracking devices may be issued to

an investigative or law enforcement officer by the court of

common pleas upon written application. Each application shall be

by written affidavit, signed and sworn to or affirmed before the

court of common pleas. The affidavit shall:

* * *

(4)  provide a statement setting forth all facts and

circumstances which provide the applicant with [a reasonable

suspicion] probable cause that criminal activity has been, is

or will be in progress and that the use of a mobile tracking

device will yield information relevant to the investigation

of the criminal activity.

* * *

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§ 5772.  Application for an order for use of certain devices.

(a)  Application.--The Attorney General or a deputy attorney

general designated in writing by the Attorney General or a

district attorney or an assistant district attorney designated

in writing by the district attorney may make application for an

order or an extension of an order under section 5773 (relating

to issuance of an order for use of certain devices) authorizing

or approving disclosure of mobile communications tracking

information or, if necessary, the production and disclosure of

mobile communications tracking information, the installation and

use of a pen register, a trap and trace device or a

telecommunication identification interception device under this

subchapter, in writing, under oath or equivalent affirmation, to

a court of common pleas having jurisdiction over the offense

under investigation or to any Superior Court judge when an

application for an order authorizing interception of [wire or

electronic] communications is or has been made for the targeted

telephone or another application for interception under this

subchapter has been made involving the same investigation.

* * *

§ 5773.  Issuance of an order for use of certain devices.

(a)  In general.--Upon an application made under section 5772

(relating to application for an order for use of certain

devices), the court shall enter an ex parte order authorizing

the disclosure of mobile communications tracking information, 

the installation and use of a pen register, a trap and trace

device or a telecommunication identification interception device

within [the jurisdiction of the court if the court] this

Commonwealth if the court finds that there is probable cause to

believe that information relevant to an ongoing criminal

investigation will be obtained by such installation and use on

the targeted telephone. If exigent circumstances exist, the

court may verbally authorize the disclosure of mobile

communications tracking information, the installation and use of

a pen register, a trap and trace device or a telecommunication

identification interception device. The written order

authorizing the disclosure must be entered within 72 hours of

the court's verbal authorization.

* * *

(c)  Time period and extensions.--

(1)  An order issued under this section shall authorize

the installation and use of a pen register, trap and trace

device or a telecommunication identification interception

device for a period not to exceed [30] 60 days.

(2)  Extensions of such an order may be granted but only

upon an application for an order under section 5772 and upon

the judicial finding required by subsection (a). The period

of each extension shall be for a period not to exceed 30

days.

* * *

Section 12.  This act shall take effect in 60 days.