[Congressional Record Volume 144, Number 132 (Monday, September 28, 1998)]
[Senate]
[Pages S11053-S11056]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




           YEAR 2000 INFORMATION AND READINESS DISCLOSURE ACT

                                 ______
                                 

                 HATCH (AND OTHERS) AMENDMENT NO. 3669

  Mr. ROBERTS (for Mr. Hatch for himself, Mr. Leahy, and Mr. Kyl) 
proposed an amendment to the bill (S. 2392) to encourage the disclosure 
and exchange of information about computer processing problems and 
related matters in connection with the transition to the Year 2000; as 
follows:

        Strike all after the enacting clause and insert the 
     following:

     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

[[Page S11054]]

     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--

[[Page S11055]]

       (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. 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;

[[Page S11056]]

       (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.
                                 ______
                                 

                      THOMPSON AMENDMENT NO. 3670

  Mr. ROBERTS (for Mr. Thompson) proposed an amendment to amendment No. 
3669 proposed by Mr. Hatch to the bill, S. 2392, supra; as follows:

       Redesignate section 8 as section 9 and insert the following 
     after section 8:

     SEC. 8. YEAR 2000 COUNCIL WORKING GROUPS.

       (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.

                          ____________________