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Session Law

2004

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Chapter 196 AN ACT RESTRUCTURING THE TRANSPORTATION SYSTEM OF THE COMMONWEALTH.

Whereas , The deferred operation of this act would tend to defeat its purpose, which is to immediately provide for reforms and improvements to the commonwealth's transportation system, therefore it is hereby declared to be an emergency law, necessary for the immediate preservation of the public convenience.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:

SECTION 1. Chapter 6 of the General Laws is hereby amended by striking out section 57, as appearing in the 2002 Official Edition, and inserting in place thereof the following section:-

Section 57. There shall be a commission to be known as the Massachusetts aeronautics commission, consisting of 7 members 1 of whom shall be the secretary of transportation, who shall serve as chairperson of the commission and 6 persons to be appointed by the governor, no more than 5 of whom shall, at any 1 time, be members of the same political party. Of the members appointed by the governor, 4 shall be persons having practical experience in aeronautics, 1 shall be a person with experience in homeland or airport security, and at least 1 member shall be a resident of a city or town in which a regional airport facility is located. Upon the expiration of the term of office of a member of the commission, his successor shall be appointed for a term coterminous with that of the governor. Each member of the commission shall serve without pay.

The commission shall be provided with suitable offices at the General Edward Lawrence Logan International Airport and elsewhere within the commonwealth as the commission may determine.

The commission, subject to appropriation, may incur such expenses as may be necessary to administer and enforce sections 35 to 52, inclusive, of chapter 90 and other laws relating to aeronautics, including the purchase of civil air patrol aviation education training aid books and materials necessary in carrying out crash, rescue and emergency operations and the organization thereof and for cadet training activities at a cost not to exceed $20,000 annually.

The commission may pay a proper charge for effecting insurance providing for the indemnification and protection of a pilot of the aircraft under its custody, care and control, for expenses or damages incurred by him in the defense or settlement of claims against him for bodily injuries, death, or for damage to property arising out of his operation of such aircraft while acting within the scope of his official duties or employment.

The commission shall make an annual report to the general court.

SECTION 2. Section 2 of chapter 6A of the General Laws, as most recently amended by chapter 26 of the acts of 2003, is hereby further amended by striking out the words "and construction".

SECTION 3. Said chapter 6A is hereby further amended by striking out section 19, and inserting in place thereof the following section:-

Section 19. (a) The executive office of transportation shall serve as the principal agency of the executive department for the following purposes: (1) developing, coordinating, administering and managing transportation policies, planning and programs related to design, construction, maintenance, operations and financing; (2) supervising and managing the organization and conduct of the business affairs of the departments, agencies, commissions, offices, boards, divisions, and other entities within the executive office to improve administrative efficiency and program effectiveness and to preserve fiscal resources; (3) developing and implementing effective policies and programs to assure the coordination and quality of roadway, transit, airport and port infrastructure and security provided by the secretary and all of the departments, agencies, commissions, offices, boards, divisions, authorities and other entities within the executive office.

(b) The following agencies shall be within the executive office of transportation: the department of highways, including the government center commission established by section 1 of chapter 635 of the acts of 1960, and all other agencies within the department including the registry of motor vehicles, the division of motorboats, and the division of waterways; and the Massachusetts aeronautics commission, the Massachusetts Bay Transportation Authority, the Massachusetts Port Authority, the Massachusetts Turnpike Authority and any regional transportation authorities established under chapter 161 or 161B.

Nothing in this chapter shall be construed as conferring any powers or imposing any duties upon the secretary with respect to the foregoing agencies and authorities except as expressly provided by law.

(c) The governor shall appoint a secretary of transportation, who shall serve at the pleasure of the governor and shall act as the executive officer in all matters pertaining to the administration, management, operation, regulation, planning, fiscal and policy development functions and affairs of the departments, agencies, commissions, offices, boards, divisions, and other agencies within the executive office.

(d) The secretary may: (1) operate and administer the programs of roadway design, construction, repair, maintenance, capital improvement, development, and planning through the department of highways and other agencies within the executive office, as appropriate; (2) coordinate and supervise the administration of the executive office and its agencies to promote economy and efficiency and to leverage federal funding; (3) develop, in consultation with the commonwealth development coordinating council, and administer a long-term state-wide transportation plan for the commonwealth that includes planning for intermodal and integrated transportation; (4) develop, based on a public hearing process, procedures to be used for transportation project selection; (5) establish criteria for project selection to be used in the procedures developed pursuant to clause (4); (6) enter into agreements with commissions, offices, boards, divisions, authorities and other entities within the executive office to improve departments, agencies, administrative efficiency and program effectiveness and to preserve fiscal resources; (7) pursuant to chapter 30A, make, amend and repeal rules and regulations for the management and administration of the executive office and agencies within the executive office; (8) execute all instruments necessary for carrying out the business of the executive office and its agencies; (9) acquire, own, hold, dispose of, lease and encumber property in the name of the executive office and its agencies; (10) enter into agreements and transactions with federal, state and municipal agencies and other public institutions and private individuals, partnerships, firms, corporations, associations and other entities on behalf of the executive office or its agencies; and (11) apply for and accept funds, including grants, on behalf of the commonwealth in accordance with applicable law. The secretary may delegate any of the foregoing powers to an officer having charge of a department, office, division or other administrative unit within the executive office.

(e) The secretary shall establish a performance measurement system for the agencies within the executive office, which shall establish program goals, measure program performance against those goals and report publicly on progress to improve the effectiveness of transportation design and construction, service delivery and policy decision-making. The performance measurement system shall require each agency to develop a strategic plan for program activities and performance goals. The system shall require annual program performance reports which shall be submitted to the house and senate committees on ways and means and the joint committee on transportation.

(f) Nothing in this chapter shall be construed as conferring any powers or imposing any duties upon the secretary with respect to the foregoing agencies and authorities except as expressly provided by law.

SECTION 4. Said chapter 6A is hereby further amended by adding the following section:-

Section 103. There shall be within the executive office of transportation an office of transportation planning which shall be under the supervision and control of the secretary. The secretary shall appoint an executive director who shall be skilled and experienced in the field of transportation planning and shall not be subject to chapter 31 or to section 9A of chapter 30. Said director may be removed for cause by the secretary. Said office shall serve as the principal source of transportation planning for state-level transportation projects, and shall work in coordination with regional planning agencies in the commonwealth, which shall serve as the principal source of transportation planning for local and regional transportation projects. Said office shall conduct research, surveys, demonstration projects and studies in cooperation with the federal government, said regional planning agencies, regional transit authorities, other governmental agencies, and appropriate private organizations.

Said office shall be responsible for the preparation of a comprehensive and coordinated intermodal transportation plan for the commonwealth. Said plan shall include programs and projects to improve and maintain facilities and equipment for all modes of transportation in the commonwealth, including highways and roads, passenger rail and other public transportation, freight rail, aviation, shipping and water transportation. Said plan shall ensure an equitable allocation of investments in transportation across the regions of the commonwealth. Said plan shall include any program for the disposition of capital assets. Said plan shall include transportation improvement projects of the commonwealth and all of its constituent agencies and authorities that own or operate transportation facilities, including the department of highways, the Massachusetts turnpike authority, the Massachusetts Bay Transportation Authority, the regional transit authorities, the Massachusetts Port Authority and the Massachusetts aeronautics commission. Said plan shall be developed in consultation with said agencies and authorities, the commonwealth development coordinating council, the metropolitan planning organizations, the regional planning agencies, and the transportation finance commission. Said plan shall be prepared in coordination with comprehensive urban development plans and in cooperation with the said other agencies so far as practicable.

SECTION 5. Chapter 16 of the General Laws is hereby amended by striking out section 1, as appearing in the 2002 Official Edition, and inserting in place thereof the following section:-

Section 1. (a) There shall be a department of highways, in sections 1 to 5, inclusive, and section 13 of this chapter called the department.

The department shall:

(1) administer the design, construction, operation and maintenance of the roads and bridges of the commonwealth;

(2) enter into any contracts and agreements necessary or desirable to carry out its purposes;

(3) make, and from time to time revise, regulations for the conduct of the business of the department, and all regulations otherwise required by law;

(4) collaborate with other agencies and authorities as may be appropriate in fields related to transportation, development, public safety and security;

(5) prepare and submit to the governor and the general court an annual report containing in substance the description of the organization of the department, reviewing the work of the department, recommending legislation and other action by the governor and the general court, and containing such information relating to highways as appropriate, including information required by the commissioner of administration, and

(6) submit such other reports as the commissioner of administration requires.

The department shall be under the direction of a commissioner, who shall be appointed by the governor and who shall serve at his pleasure. The commissioner shall be responsible for administering and enforcing the provisions of this chapter relative to the administration of each bureau or other section thereof under his control and supervision unless otherwise provided herein, subject to the supervision of the secretary of transportation.

The commissioner shall be exempt from chapter 31 and the position of commissioner shall be classified in accordance with section 45 of chapter 30 and the salary shall be determined in accordance with section 46C of said chapter 30. The commissioner shall be appointed with due regard to his fitness, by reason of his experience in matters relating to transportation infrastructure, including roads and bridges, such as their construction, operations, financing or other relevant experience relative to the efficient exercise of his powers and duties. The commissioner shall administer this section and the General Laws, rules and regulations that grant powers to or impose duties upon the department, subject to the supervision of the secretary.

(b) The commissioner shall establish a procedure for recommending to the secretary approval or disapproval of all contracts, including specifications, made by the department, and any changes, alterations, amendments, or modifications thereof and for contract appeals of all claims made under any contract with the department with the exception of claims subject to section 39Q of chapter 30. Any person aggrieved by a decision of the secretary acting in regard to contract appeals may bring suit against the commonwealth for recovery of damages based on such claim under the provisions of chapter 258.

To assist the secretary and commissioner in performing this function, the governor may appoint and remove a person of legal training and experience, who shall be a member of the bar of the commonwealth, to the position of hearing examiner. The hearing examiner shall devote full time during business hours to the duties of his position. The position shall be classified in accordance with section 45 of chapter 30 and the salary shall be determined in accordance with section 46C of said chapter 30. The secretary may refer any dispute concerning contracts, contract specifications or the execution of contracts not subject to the aforesaid section 39Q of said chapter 30 to the hearing examiner for a report on the matter including a recommendation as to the disposition of the dispute.

The hearing examiner shall hear all claims by contractors from determinations of the department with the exception of claims subject to said section 39Q of said chapter 30; and shall, after hearing, render to the secretary a report of the matter including a recommendation as to the disposition of the claim. Said examiner shall at the request of the contractor or of the department or on his own motion summon witnesses and require the production of books and records and take testimony under oath. Such reports shall be maintained as public records in a place and form fully accessible to the public.

(c) The commissioner shall appoint and may remove all employees in the department, subject to the approval of the secretary. Except as provided in this chapter or as otherwise provided by law, all such appointments and removals shall be made in accordance with the provisions of chapter 31. From time to time the commissioner may, subject to appropriation and regulation, employ such consultants as he may consider necessary.

The commissioner may appoint and remove without regard to chapter 31, but with the approval of the secretary, a chief engineer; 5 deputy chief engineers; an assistant chief engineer; a highway and structures engineer; a bridge engineer; highway engineers; district highway engineers; a chief counsel to serve in the office of the commissioner; a director to serve in the division of administrative services; 4 executive assistants to the commissioner; a personnel director; a director of the right of way bureau; and a director of public information. The total number of appointments to be made by the commissioner under this paragraph shall not exceed 35. No person holding an appointment under this paragraph shall be subject to chapter 31 or section 9A of chapter 30. Nothing in this section shall be deemed to exempt the positions named herein from sections 45 to 50, inclusive, of said chapter 30. So far as practicable in the judgment of the commissioner, appointments to said positions not classified under said chapter 31 shall be made by promoting employees of the commonwealth serving in positions so classified. Any person appointed to the position of chief engineer, deputy chief engineer, assistant chief engineer, highway and structures engineer, bridge engineer, highway engineer or district highway engineer, shall be a person of experience and skill as an engineer and shall be: (i) an employee of the division holding an office or position classified under said chapter 31 with permanent status of senior civil engineer or higher; (ii) a registered professional engineer; or (iii) a person who has received the degree of bachelor of science in an appropriate engineering discipline from an accredited college or university. Where an employee of the commonwealth having permanent status in a position classified under or having tenure by reason of section 9A of said chapter 30 is so promoted to such unclassified position, upon termination of service in such unclassified position the employee shall be restored to the position from which he was promoted; or to a position equivalent thereto in the salary grade in the same state agency; or if he had been promoted in accordance with said chapter 31 during promotion in the unclassified position, to the position to which he was so promoted or to a position equivalent thereto in salary grade in the same state agency. In cases of restoration under said chapter 31, or under said section 9A of said chapter 30, such restoration shall be without impairment of civil service status or tenure under said section 9A, and without loss of the seniority, retirement and other rights to which uninterrupted service in the position would have entitled the employee; provided, however, that if his service in such unclassified position has been terminated for cause, the employee's right to be restored shall be determined by section 43 of said chapter 31. During the period of such appointment the person so appointed shall be eligible to take any competitive promotional examination for which he or she would otherwise have been eligible.

(d) The commissioner may promulgate rules and regulations to effectuate the purposes of this chapter.

SECTION 6. Section 2 of said chapter 16, as so appearing, is hereby amended by striking out the fourth sentence.

SECTION 7. Section 3 of said chapter 16, as so appearing, is hereby amended by inserting after the word "time", in line 4, the second time it appears, the following words:- with the approval of the secretary of transportation.

SECTION 8. Section 3A of said chapter 16 is hereby repealed.

SECTION 9. Chapter 81A of the General Laws is hereby amended by striking out section 2, as appearing in the 2002 Official Edition, and inserting in place thereof the following section:-

Section 2. (a) The authority shall consist of 5 members to be appointed by the governor who shall be residents of the commonwealth, not more than 3 of whom shall be of the same political party, and at least 1 member at all times shall be a resident of a town which abuts the Massachusetts turnpike and is wholly or partially located between the Weston toll plaza and the interstate route 495 interchange. Beginning July 1, 2007, 1 of the members shall be the secretary of transportation, who shall serve as chairperson of the authority. All members shall have senior management level experience in 1 or more of the following areas: engineering, construction, business, public or private finance, and transportation. A member of the authority shall be eligible for reappointment. Before entering upon the duties of his office, each member of the authority shall take an oath before the governor to administer the duties of his office faithfully and impartially and a record of such oath shall be filed in the office of the state secretary.

(b) Except for the chairperson, the members of the authority who began in office before July 31, 2002 shall continue for the remainder of their respective terms, and the members of the authority appointed after July 31, 2002 and before July 1, 2004 shall continue for the remainder of an initial term which shall be for 6 years, but all successive terms for members shall be for terms of 5 years. Except for the secretary of transportation, members of the authority appointed after July 1, 2004 shall be appointed for terms of 5 years. Any person appointed to fill a vacancy shall serve only for the unexpired term. The chairman of the authority whose term of office began before July 31, 2002 shall continue in office until July 1, 2007.

(c) The authority shall elect 1 of the members as vice chairperson. Three members of the authority, including the chairperson, shall constitute a quorum and the affirmative vote of 3 members shall be necessary for any action taken by the authority. No vacancy in the membership of the authority shall impair the right of a quorum to exercise all the rights and perform all the duties of the authority. The members shall serve without pay. Each member shall be reimbursed for his actual expenses necessarily incurred in the performance of his duties.

(d) The authority shall have the power to appoint and employ officers, including an executive director, and to fix their compensation and conditions of employment. The authority may bind itself by contract to employ not more than 5 senior officers and no such contract shall be for a period of more than 5 years. The salary of the executive director shall not exceed the salary of the commissioner of highways. The authority shall annually, on or before January 1, submit to the secretary of administration and finance and the house and senate committees on ways and means a schedule of salaries of all its employees and any proposed increases therein. The secretary may make recommendations to the authority on the salary structure and shall advise the authority of the prevailing rates that the commonwealth pays for similar services.

(e) The executive director of the authority shall report to the secretary of transportation on a regular basis to assist the secretary in coordinating the transportation agenda of the commonwealth.

(f) The authority may indemnify any member, officer or employee from personal expenses or damages incurred, arising out of any claim, suit, demand or judgment which arose out of any act or omission of such member, officer or employee, including the violation of the civil rights of any person under any federal law if, at the time of such act or omission such member, officer or employee was acting within the scope of his official duties or employment.

SECTION 10. Section 1 of chapter 161B of the General Laws, as so appearing, is hereby amended by inserting after the definition of "Authority" the following definition:-

"Council", the regional transit authority council established in section 27.

SECTION 11. Said chapter 161B is hereby further amended by adding the following section:-

Section 27. There shall be a regional transit authority council for the purposes of coordination and sharing information and best practices in matters of security and public safety planning and preparedness, service delivery, cost savings, and administrative efficiencies. Members of the council shall include the administrator of each authority established under section 14. The secretary shall be chairman of the council and the general manager of the Massachusetts Bay Transportation Authority shall be a nonvoting member of the council. The council shall meet no less than once each calendar quarter or upon the request, with reasonable notice, of the secretary.

SECTION 12. Section 2 of chapter 465 of the acts of 1956 is hereby amended by striking out the third paragraph, as amended by section 10 of chapter 246 of the acts of 2002, and inserting in place thereof the following paragraph:-

One of the members shall be the secretary of transportation. The authority shall annually elect 1 of its members as chairman and another as vice-chairman and shall also elect a secretary-treasurer who need not be a member of the authority.

SECTION 13. There is hereby established a special transportation finance commission to develop a comprehensive, multi-modal, long-range, transportation finance plan for the commonwealth.

The commission shall have 13 members, including the following: 5 members who shall not be employees of the executive branch and who shall reside in different geographic regions of the commonwealth, 1 of whom shall be a representative of the Construction Industries of Massachusetts, to be appointed by the governor to serve terms of 2 years; 3 members, who shall not be members of the general court and who shall reside in different geographic regions of the commonwealth, to be appointed by the president of the senate to serve a term of 2 years; and 3 members, who shall not be members of the general court and who shall reside in different geographic regions of the commonwealth, to be appointed by the speaker of the house of representatives to serve a term of 2 years; a representative of the Massachusetts Taxpayers Foundation; and a representative of the Massachusetts Business Roundtable. Each of the members of the commission shall be an expert with experience in the fields of law or public policy, transportation planning, or design and construction of transportation projects. One of the members appointed by the governor, 1 of the members appointed by the president of the senate, and 1 of the members appointed by the speaker of the house of representatives shall be representatives of the Massachusetts business community. One of the members appointed by the governor, 1 of the members appointed by the president of the senate, and 1 of the members appointed by the speaker of the house of representatives shall be representatives of environmental organizations, planning organizations, transportation consumer organizations or other public interest organizations. One of the members appointed by the governor shall be an expert in the field of management consulting or organizational change. One of the members appointed by the governor shall be an expert in the field of public finance. One of the members shall be appointed by the governor to serve as chairperson of the commission. The members of the commission shall be appointed no later than September 1, 2004.

In the course of its deliberations, the commission shall examine the transportation finance needs of the commonwealth for the next 25 years as identified in the short and long-term transportation plans developed by the executive office of transportation, the state transportation improvement program, the program for mass transportation, the capital investment programs of the Massachusetts Bay Transportation Authority, the regional transit authorities, the Massachusetts Turnpike Authority and the Massachusetts Port Authority; environmental mitigation agreements executed in connection with the central artery/tunnel project; and other transportation needs as identified by the commission. The commission shall consider all modes of transportation, including highways and roads, passenger rail and other public transportation, freight rail, aviation, shipping and water transportation.

The commission shall make a priority of examining the technical and financial feasibility of sustaining and expanding the public transit system, including but not limited to the central artery/tunnel project environmental commitment projects, so-called, and other service expansion proposals, including high priority projects as identified by the Massachusetts Bay Transportation Authority. Said commission shall evaluate proposed transit projects based on their transportation, economic and environmental benefits relative to costs. Said commission shall examine and develop recommendations on ways in which the Massachusetts Bay Transportation Authority may meet operational and capital improvement and reconstruction needs for the next 25 years, including without limitation recommendations regarding debt reduction, enhancing revenues derived from fares, establishing new incentives for public-private partnerships in the development of real property resources, and funding resources.

The commission shall examine the finances of the regional transportation authorities, including, but not limited to, examining state aid levels and the feasibility of moving regional transit authorities from the current reimbursement form of funding to forward funding and make recommendations for improvements to financial policies and procedures. The commission shall also identify areas where cost savings can be achieved across transportation agencies via consolidation, coordination, and reorganization.

The commission shall examine the projected federal funding, projected state funding, projected toll and fare revenue-based funding, debt financing, and any other sources of projected funding to finance the transportation needs identified by the commission. The commission shall develop recommendations as to what funding or finance measures the commonwealth or its transportation agencies may pursue to satisfy any unmet funding needs identified by the commission. The recommendations shall also include any recommendations for inter-agency agreements, consolidations, or mergers that will enable the commonwealth to make the most effective use of its transportation funding resources. The recommendations of the commission shall be designed to identify fair and equitable means of financing transportation investments through taxes, tolls, fares and other user charges.

The commission shall develop a report detailing its findings relative to identified transportation needs and identified funding sources, including a draft of any legislation required to implement its recommendations. The commission shall submit its initial report to the governor, the secretary of transportation, the clerks of the house of representatives and the senate, the house and senate committees on ways and means and the joint committee on transportation no later than December 31, 2004. The commission shall file an updated plan each year thereafter, not later than December 31.

Any research, analysis or other staff support that the commission reasonably requires shall be provided by the executive office of transportation.

SECTION 14. The executive office of transportation shall promote administrative saving and improvement initiatives between the Massachusetts Port Authority and the Massachusetts aeronautics commission. These initiatives shall reduce duplication and enhance coordination regarding airport access, planning, economic development and security. The secretary of transportation shall report to the house and senate committees on ways and means and the joint committee on transportation the results of these initiatives no later than March 1, 2005, which report shall include a list of the administrative savings and the projected amount of savings or other improvements from initiatives.

SECTION 15. The executive office of transportation shall promote administrative saving and improvement initiatives among the Massachusetts Bay Transportation Authority and any regional transportation authorities established under chapter 161B of the General Laws. These initiatives shall seek to promote the sharing of resources as appropriate and to enhance statewide transit service, construction, repair, maintenance, capital improvement, security, coordination, financing and planning. The executive office of transportation shall study the issue of tort liability among the regional transportation authorities established under said chapter 161B. The executive office of transportation shall also examine and pursue appropriate models for increasing federal aid for transit projects in the commonwealth. The secretary of transportation shall report to the house and senate committees on ways and means and the joint committee on transportation the results of these initiatives on or before March 1, 2005, which shall include a list of the administrative savings adopted and the projected amount of savings or other improvements from such initiatives.

SECTION 16. The executive office of transportation, the Massachusetts Turnpike Authority and the department of highways shall identify instances in which the authority or the department can achieve costs savings and improved performance and service by eliminating or consolidating duplicative functions, sharing or coordinating resources, equipment, facilities, expertise, personnel and procurement. The department shall enter into an agreement or agreements with the authority to achieve efficiencies, realize cost savings, eliminate duplication, and provide enhanced value to the commonwealth. The secretary shall not take actions under this section that would waste revenue or assets of the authority in a way that would impair its operations or financial covenants. The executive office of transportation shall submit a report to the joint committee on transportation and the house and senate committees on ways and means on or before March 1, 2005, detailing all cost savings to the commonwealth resulting from any agreements concluded pursuant to this section or estimated to result from any proposed agreement to share employees, equipment and operational activities and functions in order to achieve efficiencies, improve performance or services and cost savings, including recommendations to establish a permanent and potentially expanded process for the transfer or consolidation of certain responsibilities for interstate highway systems in the commonwealth from the department to the authority beginning December 31, 2005.

SECTION 17. Notwithstanding any general or special law to the contrary, the terms "secretary of transportation and construction" or "executive office of transportation and construction", wherever they appear in the general and special laws, shall be deemed to mean "secretary of transportation" or "executive office of transportation", respectively.

SECTION 18. Notwithstanding any general or special law to the contrary and in order to achieve operational efficiencies and cost savings, the Massachusetts Turnpike Authority shall study a travel demand management plan. In preparing said plan, the authority shall study the impacts and benefits of differential pricing and other value pricing strategies. The authority shall recommend for implementation the strategy that best achieves the following objectives: (1) reduced traffic congestion; (2) further participation in the authority's electronic toll collection system; and (3) reduced operating costs. The authority shall submit said plan to the joint committee on transportation and the house and senate committees on ways and means on or before December 1, 2004.

SECTION 19. Sections 1, 9 and 12 of this act shall take effect on July 1, 2007.

Approved July 21, 2004.

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