[Congressional Bills 105th Congress]
[From the U.S. Government Publishing Office]
[S. 2392 Engrossed in Senate (ES)]

  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
105th CONGRESS
  2d Session
                                S. 2392

_______________________________________________________________________

                                 AN ACT


 
To encourage the disclosure and exchange of information about computer 
 processing problems, solutions, test practices and test results, and 
  related matters in connection with the transition to the year 2000.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Year 2000 Information and Readiness 
Disclosure Act''.

SEC. 2. FINDINGS AND PURPOSES.

    (a) Findings.--Congress finds the following:
            (1)(A) At least thousands but possibly millions of 
        information technology computer systems, software programs, and 
        semiconductors are not capable of recognizing certain dates in 
        1999 and after December 31, 1999, and will read dates in the 
        year 2000 and thereafter as if those dates represent the year 
        1900 or thereafter or will fail to process those dates.
            (B) The problem described in subparagraph (A) and resulting 
        failures could incapacitate systems that are essential to the 
        functioning of markets, commerce, consumer products, utilities, 
        government, and safety and defense systems, in the United 
        States and throughout the world.
            (C) Reprogramming or replacing affected systems before the 
        problem incapacitates essential systems is a matter of national 
        and global interest.
            (2) The prompt, candid, and thorough disclosure and 
        exchange of information related to year 2000 readiness of 
        entities, products, and services--
                    (A) would greatly enhance the ability of public and 
                private entities to improve their year 2000 readiness; 
                and
                    (B) is therefore a matter of national importance 
                and a vital factor in minimizing any potential year 
                2000 related disruption to the Nation's economic well-
                being and security.
            (3) Concern about the potential for legal liability 
        associated with the disclosure and exchange of year 2000 
        readiness information is impeding the disclosure and exchange 
        of such information.
            (4) The capability to freely disseminate and exchange 
        information relating to year 2000 readiness, solutions, test 
        practices and test results, with the public and other entities 
        without undue concern about litigation is critical to the 
        ability of public and private entities to address year 2000 
        needs in a timely manner.
            (5) The national interest will be served by uniform legal 
        standards in connection with the disclosure and exchange of 
        year 2000 readiness information that will promote disclosures 
        and exchanges of such information in a timely fashion.
    (b) Purposes.--Based upon the powers contained in article I, 
section 8, clause 3 of the Constitution of the United States, the 
purposes of this Act are--
            (1) to promote the free disclosure and exchange of 
        information related to year 2000 readiness;
            (2) to assist consumers, small businesses, and local 
        governments in effectively and rapidly responding to year 2000 
        problems; and
            (3) to lessen burdens on interstate commerce by 
        establishing certain uniform legal principles in connection 
        with the disclosure and exchange of information related to year 
        2000 readiness.

 SEC. 3. DEFINITIONS.

    In this Act:
            (1) Antitrust laws.--The term ``antitrust laws''--
                    (A) has the meaning given to it in subsection (a) 
                of the first section of the Clayton Act (15 U.S.C. 
                12(a)), except that such term includes section 5 of the 
                Federal Trade Commission Act (15 U.S.C. 45) to the 
                extent such section 5 applies to unfair methods of 
                competition; and
                    (B) includes any State law similar to the laws 
                referred to in subparagraph (A).
            (2) Consumer.--The term ``consumer'' means an individual 
        who acquires a consumer product for purposes other than resale.
            (3) Consumer product.--The term ``consumer product'' means 
        any personal property or service which is normally used for 
        personal, family, or household purposes.
            (4) Covered action.--The term ``covered action'' means 
        civil action of any kind, whether arising under Federal or 
        State law, except for an action brought by a Federal, State, or 
        other public entity, agency, or authority acting in a 
        regulatory, supervisory, or enforcement capacity.
            (5) Maker.--The term ``maker'' means each person or entity, 
        including the United States or a State or political subdivision 
        thereof, that--
                    (A) issues or publishes any year 2000 statement;
                    (B) develops or prepares any year 2000 statement; 
                or
                    (C) assists in, contributes to, or reviews, reports 
                or comments on during, or approves, or otherwise takes 
                part in the preparing, developing, issuing, approving, 
                or publishing of any year 2000 statement.
            (6) Republication.--The term ``republication'' means any 
        repetition, in whole or in part, of a year 2000 statement 
        originally made by another.
            (7) Year 2000 internet website.--The term ``year 2000 
        Internet website'' means an Internet website or other similar 
        electronically accessible service, clearly designated on the 
        website or service by the person or entity creating or 
        controlling the content of the website or service as an area 
        where year 2000 statements concerning that person or entity are 
        posted or otherwise made accessible to the general public.
            (8) Year 2000 processing.--The term ``year 2000 
        processing'' means the processing (including calculating, 
        comparing, sequencing, displaying, or storing), transmitting, 
        or receiving of date data from, into, and between the 20th and 
        21st centuries, and during the years 1999 and 2000, and leap 
        year calculations.
            (9) Year 2000 readiness disclosure.--The term ``year 2000 
        readiness disclosure'' means any written year 2000 statement--
                    (A) clearly identified on its face as a year 2000 
                readiness disclosure;
                    (B) inscribed on a tangible medium or stored in an 
                electronic or other medium and retrievable in 
                perceivable form; and
                    (C) issued or published by or with the approval of 
                a person or entity with respect to year 2000 processing 
                of that person or entity or of products or services 
                offered by that person or entity.
            (10) Year 2000 remediation product or service.--The term 
        ``year 2000 remediation product or service'' means a software 
        program or service licensed, sold, or rendered by a person or 
        entity and specifically designed to detect or correct year 2000 
        processing problems with respect to systems, products, or 
        services manufactured or rendered by another person or entity.
            (11) Year 2000 statement.--
                    (A) In general.--The term ``year 2000 statement'' 
                means any communication or other conveyance of 
                information by a party to another or to the public, in 
                any form or medium--
                            (i) concerning an assessment, projection, 
                        or estimate concerning year 2000 processing 
                        capabilities of an entity, product, service, or 
                        set of products and services;
                            (ii) concerning plans, objectives, or 
                        timetables for implementing or verifying the 
                        year 2000 processing capabilities of an entity, 
                        product, service, or set of products and 
                        services;
                            (iii) concerning test plans, test dates, 
                        test results, or operational problems or 
                        solutions related to year 2000 processing by--
                                    (I) products; or
                                    (II) services that incorporate or 
                                utilize products; or
                            (iv) reviewing, commenting on, or otherwise 
                        directly or indirectly relating to year 2000 
                        processing capabilities.
                    (B) Not included.--For the purposes of any action 
                brought under the securities laws, as that term is 
                defined in section 3(a)(47) of the Securities Exchange 
                Act of 1934 (15 U.S.C. 78c(a)(47)), the term year 2000 
                statement does not include statements contained in any 
                documents or materials filed with the Securities and 
                Exchange Commission, or with Federal banking 
                regulators, pursuant to section 12(i) of the Securities 
                Exchange Act of 1934 (15 U.S.C. 781(i)), or disclosures 
                or writing that when made accompanied the solicitation 
                of an offer or sale of securities.

 SEC. 4. PROTECTION FOR YEAR 2000 STATEMENTS.

    (a) Evidence Exclusion.--No year 2000 readiness disclosure, in 
whole or in part, shall be admissible against the maker of that 
disclosure to prove the accuracy or truth of any year 2000 statement 
set forth in that disclosure, in any covered action brought by another 
party except that--
            (1) a year 2000 readiness disclosure may be admissible to 
        serve as the basis for a claim for anticipatory breach, or 
        repudiation of a contract, or a similar claim against the 
        maker, to the extent provided by applicable law; and
            (2) the court in any covered action shall have discretion 
        to limit application of this subsection in any case in which 
        the court determines that the maker's use of the year 2000 
        readiness disclosure amounts to bad faith or fraud, or is 
        otherwise beyond what is reasonable to achieve the purposes of 
        this Act.
    (b) False, Misleading and Inaccurate Year 2000 Statements.--Except 
as provided in subsection (c), in any covered action, to the extent 
that such action is based on an allegedly false, inaccurate, or 
misleading year 2000 statement, the maker of that year 2000 statement 
shall not be liable under Federal or State law with respect to that 
year 2000 statement unless the claimant establishes, in addition to all 
other requisite elements of the applicable action, by clear and 
convincing evidence, that--
            (1) the year 2000 statement was material; and
            (2)(A) to the extent the year 2000 statement was not a 
        republication, that the maker made the year 2000 statement--
                    (i) with actual knowledge that the year 2000 
                statement was false, inaccurate, or misleading;
                    (ii) with intent to deceive or mislead; or
                    (iii) with a reckless disregard as to the accuracy 
                of the year 2000 statement; or
            (B) to the extent the year 2000 statement was a 
        republication that the maker of the republication made the year 
        2000 statement--
                    (i) with actual knowledge that the year 2000 
                statement was false, inaccurate, or misleading;
                    (ii) with intent to deceive or mislead; or
                    (iii) without notice in that year 2000 statement 
                that--
                            (I) the maker has not verified the contents 
                        of the republication; or
                            (II) the maker is not the source of the 
                        republication and the republication is based on 
                        information supplied by another person or 
                        entity identified in that year 2000 statement 
                        or republication.
    (c) Defamation or Similar Claims.--In a covered action arising 
under any Federal or State law of defamation, trade disparagement, or a 
similar claim, to the extent such action is based on an allegedly 
false, inaccurate, or misleading year 2000 statement, the maker of that 
year 2000 statement shall not be liable with respect to that year 2000 
statement, unless the claimant establishes by clear and convincing 
evidence, in addition to all other requisite elements of the applicable 
action, that the year 2000 statement was made with knowledge that the 
year 2000 statement was false or made with reckless disregard as to its 
truth or falsity.
    (d) Year 2000 Internet Website.--
            (1) In general.--Except as provided in paragraph (2), in 
        any covered action, other than a covered action involving 
        personal injury or serious physical damage to property, in 
        which the adequacy of notice about year 2000 processing is at 
        issue, the posting, in a commercially reasonable manner and for 
        a commercially reasonable duration, of a notice by the entity 
        charged with giving such notice on the year 2000 Internet 
        website of that entity shall be deemed an adequate mechanism 
        for providing that notice.
            (2) Exception.--Paragraph (1) shall not apply if the court 
        finds that the use of the mechanism of notice--
                    (A) is contrary to express prior representations 
                regarding the mechanism of notice made by the party 
                giving notice;
                    (B) is materially inconsistent with the regular 
                course of dealing between the parties; or
                    (C) occurs where there have been no prior 
                representations regarding the mechanism of notice, no 
                regular course of dealing exists between the parties, 
                and actual notice is clearly the most commercially 
                reasonable means of providing notice.
            (3) Construction.--Nothing in this subsection shall--
                    (A) alter or amend any Federal or State statute or 
                regulation requiring that notice about year 2000 
                processing be provided using a different mechanism;
                    (B) create a duty to provide notice about year 2000 
                processing;
                    (C) preclude or suggest the use of any other medium 
                for notice about year 2000 processing or require the 
                use of an Internet website; or
                    (D) mandate the content or timing of any notices 
                about year 2000 processing.
    (e) Limitation on Effect of Year 2000 Statements.--
            (1) In general.--In any covered action, a year 2000 
        statement shall not be interpreted or construed as an amendment 
        to or alteration of a contract or warranty, whether entered 
        into by or approved for a public or private entity.
            (2) Not applicable.--
                    (A) In general.--This subsection shall not apply--
                            (i) to the extent the party whose year 2000 
                        statement is alleged to have amended or altered 
                        a contract or warranty has otherwise agreed in 
                        writing to so alter or amend the contract or 
                        warranty;
                            (ii) to a year 2000 statement made in 
                        conjunction with the formation of the contract 
                        or warranty; or
                            (iii) if the contract or warranty 
                        specifically provides for its amendment or 
                        alteration through the making of a year 2000 
                        statement.
                    (B) Rule of construction.--Nothing in this 
                subsection shall affect applicable Federal or State law 
                in effect as of the date of enactment of this Act with 
                respect to determining the extent to which a year 2000 
                statement affects a contract or warranty.
    (f) Special Data Gathering.--
            (1) In general.--A Federal entity, agency, or authority may 
        expressly designate a request for the voluntary provision of 
        information relating to year 2000 processing, including year 
        2000 statements, as a special year 2000 data gathering request 
        made pursuant to this subsection.
            (2) Specifics.--A special year 2000 data gathering request 
        made under this subsection shall specify a Federal entity, 
        agency, or authority, or, with its consent, another public or 
        private entity, agency, or authority, to gather responses to 
        the request.
            (3) Protections.--Except with the express consent or 
        permission of the provider of information described in 
        paragraph (1), any year 2000 statements or other such other 
        information provided by a party in response to a special year 
        2000 data gathering request made under this subsection--
                    (A) shall be exempt from disclosure under 
                subsection (b)(4) of section 552 of title 5, United 
                States Code, commonly known as the ``Freedom of 
                Information Act'';
                    (B) shall not be disclosed to any third party; and
                    (C) may not be used by any Federal entity, agency, 
                or authority or by any third party, directly or 
                indirectly, in any civil action arising under any 
                Federal or State law.
            (4) Exceptions.--
                    (A) Information obtained elsewhere.--Nothing in 
                this subsection shall preclude a Federal entity, 
                agency, or authority, or any third party, from 
                separately obtaining the information submitted in 
                response to a request under this subsection through the 
                use of independent legal authorities, and using such 
                separately obtained information in any action.
                    (B) Voluntary disclosure.--A restriction on use or 
                disclosure of information under this subsection shall 
                not apply to any information disclosed to the public 
                with the express consent of the party responding to a 
                special year 2000 data gathering request or disclosed 
                by such party separately from a response to a special 
                year 2000 data gathering request.

SEC. 5. TEMPORARY ANTITRUST EXEMPTION.

    (a) Exemption.--Except as provided in subsection (b), the antitrust 
laws shall not apply to conduct engaged in, including making and 
implementing an agreement, solely for the purpose of and limited to--
            (1) facilitating responses intended to correct or avoid a 
        failure of year 2000 processing in a computer system, in a 
        component of a computer system, in a computer program or 
        software, or services utilizing any such system, component, 
        program, or hardware; or
            (2) communicating or disclosing information to help correct 
        or avoid the effects of year 2000 processing failure
    (b) Applicability.--Subsection (a) shall apply only to conduct that 
occurs, or an agreement that is made and implemented, after the date of 
enactment of this Act and before July 14, 2001.
    (c) Exception to Exemption.--Subsection (a) shall not apply with 
respect to conduct that involves or results in an agreement to boycott 
any person, to allocate a market or fix prices or output.
    (d) Rule of Construction.--The exemption granted by this section 
shall be construed narrowly.

 SEC. 6. EXCLUSIONS.

    (a) Effect on Information Disclosure.--This Act does not affect, 
abrogate, amend, or alter the authority of a Federal or State entity, 
agency, or authority to enforce a requirement to provide or disclose, 
or not to provide or disclose, information under a Federal or State 
statute or regulation or to enforce such statute or regulation.
    (b) Contracts and Other Claims.--
            (1) In general.--Except as may be otherwise provided in 
        subsections (a) and (e) of section 4, this Act does not affect, 
        abrogate, amend, or alter any right established by contract or 
        tariff between any person or entity, whether entered into by a 
        public or private person or entity, under any Federal or State 
        law.
            (2) Other claims.--
                    (A) In general.--In any covered action brought by a 
                consumer, this Act does not apply to a year 2000 
                statement expressly made in a solicitation, including 
                an advertisement or offer to sell, to that consumer by 
                a seller, manufacturer, or provider of a consumer 
                product.
                    (B) Specific notice required.--In any covered 
                action, this Act shall not apply to a year 2000 
                statement, concerning a year 2000 remediation product 
                or service, expressly made in an offer to sell or in a 
                solicitation (including an advertisement) by a seller, 
                manufacturer, or provider, of that product or service 
                unless, during the course of the offer or solicitation, 
                the party making the offer or solicitation provides the 
                following notice in accordance with section 4(d):
                            ``Statements made to you in the course of 
                        this sale are subject to the Year 2000 
                        Information and Readiness Disclosure Act (____ 
                        U.S.C. ____). In the case of a dispute, this 
                        Act may reduce your legal rights regarding the 
                        use of any such statements, unless otherwise 
                        specified by your contract or tariff.''.
            (3) Rule of construction.--Nothing in this Act shall be 
        construed to preclude any claims that are not based exclusively 
        on year 2000 statements.
    (c) Duty or Standard of Care.--
            (1) In general.--This Act shall not impose upon the maker 
        of any year 2000 statement any more stringent obligation, duty, 
        or standard of care than is otherwise applicable under any 
        other Federal law or State law.
            (2) Additional disclosure.--This Act does not preclude any 
        party from making or providing any additional disclosure, 
        disclaimer, or similar provisions in connection with any year 
        2000 readiness disclosure or year 2000 statement.
            (3) Duty of care.--This Act shall not be deemed to alter 
        any standard or duty of care owed by a fiduciary, as defined or 
        determined by applicable Federal or State law.
    (d) Intellectual Property Rights.--This Act does not affect, 
abrogate, amend, or alter any right in a patent, copyright, 
semiconductor mask work, trade secret, trade name, trademark, or 
service mark, under any Federal or State law.
    (e) Injunctive Relief.--Nothing in this Act shall be deemed to 
preclude a claimant from seeking injunctive relief with respect to a 
year 2000 statement.

 SEC. 7. APPLICABILITY.

    (a) Effective Date.--
            (1) In general.--Except as otherwise provided in this 
        section, this Act shall become effective on the date of 
        enactment of this Act.
            (2) Application to lawsuits pending.--This Act shall not 
        affect or apply to any lawsuit pending on July 14, 1998.
            (3) Application to statements and disclosures.--Except as 
        provided in subsection (b)--
                    (A) this Act shall apply to any year 2000 statement 
                made beginning on July 14, 1998 and ending on July 14, 
                2001; and
                    (B) this Act shall apply to any year 2000 readiness 
                disclosure made beginning on the date of enactment of 
                this Act and ending on July 14, 2001.
    (b) Previously Made Readiness Disclosure.--
            (1) In general.--For the purposes of section 4(a), a person 
        or entity that issued or published a year 2000 statement after 
        January 1, 1996, and before the date of enactment of this Act, 
        may designate that year 2000 statement as a year 2000 readiness 
        disclosure if--
                    (A) the year 2000 statement complied with the 
                requirements of section 3(9) when made, other than 
                being clearly designated on its face as a disclosure; 
                and
                    (B) within 45 days after the date of enactment of 
                this Act, the person or entity seeking the 
                designation--
                            (i) provides individual notice that meets 
                        the requirements of paragraph (2) to all 
                        recipients of the applicable year 2000 
                        statement; or
                            (ii) prominently posts notice that meets 
                        the requirements of paragraph (2) on its year 
                        2000 Internet website, commencing prior to the 
                        end of the 45-day period under this 
                        subparagraph and extending for a minimum of 45 
                        consecutive days and also by using the same 
                        method of notification used to originally 
                        provide the applicable year 2000 statement.
            (2) Requirements.--A notice under paragraph (1)(B) shall--
                    (A) state that the year 2000 statement that is the 
                subject of the notice is being designated a year 2000 
                readiness disclosure; and
                    (B) include a copy of the year 2000 statement with 
                a legend labeling the statement as a ``Year 2000 
                Readiness Disclosure''.
    (c) Exception.--No designation of a year 2000 statement as a year 
2000 readiness disclosure under subsection (b) shall apply with respect 
to any person or entity that--
            (1) proves, by clear and convincing evidence, that it 
        relied on the year 2000 statement prior to the receipt of 
        notice described above and it would be prejudiced by the 
        retroactive designation of the year 2000 statement as a year 
        2000 readiness disclosure; and
            (2) provides to the person or entity seeking the 
        designation a written notice objecting to the designation 
        within 45 days after receipt of individual notice under 
        subsection (b)(1)(B)(i), or within 180 days after the date of 
        enactment of this Act, in the case of notice provided under 
        subsection (b)(1)(B)(ii).

SEC. 8. YEAR 2000 COUNCIL WORKING GROUPS.

    (a) In General.--
            (1) Working groups.--The President's Year 2000 Council 
        (referred to in this section as the ``Council'') may establish 
        and terminate working groups composed of Federal employees who 
        will engage outside organizations in discussions to address the 
        year 2000 problems identified in section 2(a)(1) to share 
        information related to year 2000 readiness, and otherwise to 
        serve the purposes of this Act.
            (2) List of groups.--The Council shall maintain and make 
        available to the public a printed and electronic list of the 
        working groups, the members of each working group, and a point 
        of contact, together with an address, telephone number, and 
        electronic mail address for the point of contact, for each 
        working group created under this section.
            (3) Balance.--The Council shall seek to achieve a balance 
        of participation and representation among the working groups.
            (4) Attendance.--The Council shall maintain and make 
        available to the public a printed and electronic list of 
        working group members who attend each meeting of a working 
        group as well as any other individuals or organizations 
        participating in each meeting.
            (5) Meetings.--Each meeting of a working group shall be 
        announced in advance in accordance with procedures established 
        by the Council. The Council shall encourage working groups to 
        hold meetings open to the public to the extent feasible and 
        consistent with the activities of the Council and the purposes 
        of this Act.
    (b) FACA.--The Federal Advisory Committee Act (5 U.S.C. App.) shall 
not apply to the working groups established under this section.
    (c) Private Right of Action.--This section creates no private right 
of action to sue for enforcement of the provisions of this section.
    (d) Expiration.--The authority conferred by this section shall 
expire on December 31, 2000.

 SEC. 9. NATIONAL INFORMATION CLEARINGHOUSE AND WEBSITE.

    (a) National Website.--
            (1) In general.--The Administrator of General Services 
        shall create and maintain until July 14, 2002, a national year 
        2000 website, and promote its availability, designed to assist 
        consumers, small business, and local governments in obtaining 
        information from other governmental websites, hotlines, or 
        information clearinghouses about year 2000 Processing of 
        computers, systems, products and services, including websites 
        maintained by independent agencies and other departments.
            (2) Consultation.--In creating the national year 2000 
        website, the Administrator of General Services shall consult 
        with--
                    (A) the Director of the Office of Management and 
                Budget;
                    (B) the Administrator of the Small Business 
                Administration;
                    (C) the Consumer Product Safety Commission;
                    (D) officials of State and local governments;
                    (E) the Director of the National Institute of 
                Standards and Technology;
                    (F) representatives of consumer and industry 
                groups; and
                    (G) representatives of other entities, as 
                determined appropriate.
    (b) Report.--The Administrator of General Services shall submit a 
report to the Committees on the Judiciary of the Senate and the House 
of Representatives and the Committee on Governmental Affairs of the 
Senate and the Committee on Government Reform and Oversight of the 
House of Representatives not later than 60 days after the date of 
enactment of this Act regarding planning to comply with the 
requirements of this section.

            Passed the Senate September 28, 1998.

            Attest:

                                                             Secretary.
105th CONGRESS

  2d Session

                                S. 2392

_______________________________________________________________________

                                 AN ACT

To encourage the disclosure and exchange of information about computer 
 processing problems, solutions, test practices and test results, and 
  related matters in connection with the transition to the year 2000.

S 2392 ES----2
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