[Congressional Record Volume 144, Number 132 (Monday, September 28, 1998)]
[Senate]
[Pages S11062-S11068]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
YEAR 2000 INFORMATION AND READINESS DISCLOSURE ACT
Mr. ROBERTS. Mr. President, I ask unanimous consent that the Senate
now proceed to consideration of Calendar No. 584, S. 2392.
The PRESIDING OFFICER. The clerk will report.
The legislative clerk read as follows:
A bill (S. 2392) 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.
The PRESIDING OFFICER. Is there objection to the immediate
consideration of the bill?
There being no objection, the Senate proceeded to consider the
bill, which had been reported from the Committee on the Judiciary, with
an amendment to strike all after the enacting clause and inserting in
lieu thereof 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.
[[Page S11063]]
(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 other than for purposes of
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 any
civil action of any kind, whether arising under Federal or
State law, except for any civil action arising under Federal
or State law 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 a State or political subdivision thereof, that
issues or publishes any year 2000 statement, or develops or
prepares, or 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 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,
clearly identified on its face as a year 2000 readiness
disclosure inscribed on a tangible medium or stored in an
electronic or other medium and retrievable in perceivable
form and issued or published by or with the approval of an
entity with respect to year 2000 processing of that entity or
of products or services offered by that entity.
(10) 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 any entity,
product, or service, or a set of products and services;
(ii) concerning plans, objectives, or timetables for
implementing or verifying the year 2000 processing
capabilities of an entity, a product, or service, or a set of
products or 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.--The term does not include 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)), any document or
material 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
any disclosure 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
the 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 disclosure may serve as the basis for a claim for
anticipatory breach or repudiation 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 that disclosure
amounts to bad faith, or fraud, or is otherwise is beyond
what is reasonable to achieve the purposes of this Act.
(b) False, Misleading and Inaccurate Year 2000
Statements.--Except as otherwise 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 of a year 2000 statement originally made by a
third party, 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 of a year 2000 statement originally made by a
third party, 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 republished year
2000 statement, the republished statement is based on
information supplied by another person or entity, and the
notice or republished statement identifies the source of the
republished statement.
(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 to be an
adequate mechanism for providing that notice.
(2) Exception.--Under paragraph (1) the notice shall not be
adequate if the trier of fact finds that the use of the
mechanism of notice--
(A) is contrary to express prior representations 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 and no regular course of
dealing exists between the parties and where 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 is
intended to 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 within
the scope of clause (i), (ii), or (iii) of subparagraph (A)
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,
[[Page S11064]]
or with the consent of the designee, 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 be prohibited from disclosure 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 the 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--
(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 entity, under any
Federal or State law.
(2) Other claims.--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.
(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 temporary or permanent
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 on
or after July 14, 1998 through July 14, 2001; and
(B) this Act shall apply to any year 2000 readiness
disclosure made after the date of enactment of this Act
through 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 4(b) when made, other than being clearly
designated on its face as a disclosure;
(B) within 45 days after the date of enactment of this Act,
the person or entity seeking the designation provides
notice--
(i) by individual notice that meets the requirements of
paragraph (2) to all recipients of the applicable year 2000
statement; and
(ii) a prominent posting 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 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
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)(2)(B)(i), or within 180 days after the date of
enactment of this Act, in the case of notice provided under
subsection (b)(2)(B)(ii).
SEC. 8. NATIONAL INFORMATION CLEARINGHOUSE AND WEBSITE.
(a) National Website.--
(1) In general.--The Administrator of General Services
shall create and maintain 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 preliminary 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.
Amend the title so as to read: ``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.''.
Amendment No. 3669
(Purpose: To provide a substitute)
Mr. ROBERTS. Senators Hatch, Leahy, and Kyl have a substitute
amendment at the desk, and I ask for its consideration.
The PRESIDING OFFICER. The clerk will report.
The legislative clerk read as follows:
The Senator from Kansas [Mr. Roberts] for Mr. Hatch, for
himself, Mr. Leahy, and Mr. Kyl, proposes an amendment
numbered 3669.
Mr. ROBERTS. Mr. President, I ask unanimous consent reading of the
amendment be dispensed with.
(The text of the amendment is printed in today's Record under
``Amendments Submitted.'')
Amendment No. 3670 to Amendment No. 3669
(Purpose: To provide for the establishment of working groups as a part
of the President's Year 2000 Council)
Mr. ROBERTS. Senator Thompson has an amendment at the desk and I now
ask for its consideration.
The PRESIDING OFFICER. The clerk will report.
The legislative clerk read as follows:
The Senator from Kansas [Mr. Roberts], for Mr. Thompson,
proposes an amendment numbered 3670 to amendment No. 3669.
[[Page S11065]]
Mr. ROBERTS. Mr. President, I ask unanimous consent the reading of
the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
Redesignate section 8 as section 9 and insert the following
after section 8:
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 due for enforcement of the
provisions of this section.
(d) Expiration.--The authority conferred by this section
shall expire on December 31, 2000.
Mr. THOMPSON. Mr. President, this country will face an unprecedented
problem on January 1, 2000, when many computer systems, in the form of
software, hardware and embedded chips, will interpret the year as 1900
rather than 2000, potentially resulting in extensive failures of
critical operations. The fix to this problem is not a technological
challenge, but a management challenge due to its massive nature and the
limited time we have to fix it. With less then 465 days until the new
millennium, this problem will affect every level of government, every
size of business, and literally every person in this great nation.
Although the Year 2000 Information and Readiness Disclosure Act does
not represent the silver bullet to remedy this problem, I rise today to
voice my support for this legislation. This bill will encourage both
public and private sector entities to disclose year 2000 related
information, in the form of product readiness, proposed solutions and
testing processes, thereby increasing the ability of governments and
businesses to update their own systems and avoid potentially
catastrophic failures.
Mr. President, I had a number of concerns with this legislation in
its original form. First of all, this legislation preempts state and
local liability law. Typically, neither I nor many of my colleagues
would support such preemption of state authority; however, this problem
warrants drastic action. In fact, state and local government
associations have expressed their support for this bill.
Second, this legislation reduces the standard of care required in
providing accurate information as currently defined in state and local
statutes. Due to the critical nature of this problem, I can support
this provision for cases where businesses are sharing information with
the intent to identify a common solution and prevent a potentially
catastrophic failure. However, in its original form, this bill would
have extended this protection to sellers of year 2000 remediation
products and services whose statements may be motivated solely by
financial interests.
Mr. President, to address these concerns I introduced an amendment in
the Judiciary Committee which failed to pass. However, I worked with
the Committee and other interested parties to develop language that
achieved all the goals and intentions of my original amendment. This
language has been adopted in section 6(b), and all interested parties
agree we have strengthened the bill. My language will mitigate against
false and inaccurate year 2000 solicitations while promoting the open
sharing of information needed to solve the year 2000 problem. Further,
it will expressly prevent vendors which sell year 2000 remediation
products from taking advantage of unknowing customers by making the
protections of the bill unavailable to any seller of these products who
does not inform in writing any entity, including businesses,
governments, and non-profit organizations, that its legal rights under
state law are reduced by this bill. By imposing a higher duty of care
in these instances, failures will be prevented.
Since my concerns have been addressed, I support immediate passage of
this bill.
Mr. ROBERTS. Mr. President, I ask unanimous consent that the
amendment be agreed to, the substitute amendment be agreed to, the bill
be read the third time and passed, as amended, the motion to reconsider
be laid upon the table, the amendment to the title be agreed to, and
the title, as amended, be agreed to, and that any statements relating
to the bill appear at this point in the Record.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendments (Nos. 3669 and 3670) were agreed to.
The bill (S. 2392), as amended, was considered read the third time
and passed, as follows:
S. 2392
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).
[[Page S11066]]
(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.
[[Page S11067]]
(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.
[[Page S11068]]
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.
The title was amended so as to read: ``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.''
____________________