[Congressional Record Volume 144, Number 142 (Saturday, October 10, 1998)]
[Extensions of Remarks]
[Pages E2017-E2020]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




       THE ``YEAR 2000 INFORMATION AND READINESS DISCLOSURE ACT''

                                 ______
                                 

                           HON. HENRY J. HYDE

                              of illinois

                    in the house of representatives

                        Friday, October 9, 1998

  Mr. HYDE. Mr. Speaker, the Year 2000 Information and Readiness 
Disclosure Act (S. 2392) is intended to promote the voluntary sharing 
of information needed to discover, avoid, or fix problems with year 
2000 calculations in our nation's software, computers, and technology 
products. In all civil litigation including certain antitrust actions, 
the Act limits the extent to which year 2000 statements can be the 
basis for liability and it prevents certain evidentiary uses, against 
the maker, if a subset of such statements. However, the Act ensures 
that only responsible, good faith information-sharing gets such 
protection.
  In particular, the Act protects good faith sharing of two kinds of 
year 2000 information: a board category called ``year 2000 
statements,'' and a narrower subcategory called ``year 2000 readiness 
disclosures.'' Year 2000 statements and readiness disclosures can 
include any year 2000 related subject matter, but year 2000 readiness 
disclosures must be in writing, be clearly labeled, and concern one's 
own products or services. Certain already-existing year 2000 statements 
may be designated as year 2000 readiness disclosures and receive the 
protections applicable to year 2000 readiness disclosures under the 
Act. The protections given to year 2000 statements and readiness 
disclosures protect all those who help in any way to make a year 2000 
statement or readiness disclosure, so a broad group of individuals and 
entities are protected.
  The Act encourages the use of the Internet to provide notice of all 
matters relating to year 2000 processing. In addition, the Act protects 
against disclosure and use in civil actions year 2000 information 
voluntarily provided to the government under a ``special data gathering 
request.'' Finally, the Act creates a temporary exemption to the 
antitrust laws for sharing of year 2000 information, unless it results 
in an actual agreement to boycott, allocate markets, or fix prices.
  The Act does not create new causes of action or expand any existing 
causes of action, nor does it create new obligations or duties. The Act 
does not create any duty to provide notice about a year 2000 processing 
problem. The intent of this legislation is to promote sharing of year 
2000 information. This would be frustrated if any year 2000 statement 
were the sole basis for any finding of liability on the part of the 
maker. Furthermore, it is not the intent of this legislation to hold 
the maker of a year 2000 readiness disclosure liable for the adequacy 
or sufficiency of its disclosure where such disclosure is not otherwise 
required by law or contract. The Act also does not affect existing 
contracts, tariffs, intellectual property rights or consumer 
protections applicable to solicitations or offers to sell consumer 
products.
  The Act's protections are limited. The Act does not change or address 
in any way liability for a year 2000 processing failure; does not 
change or reduce any underlying duty, standard of care or liability for 
a year 2000 failure; does not apply to certain consumer transactions; 
does not prevent any underlying facts regarding a failure being 
demonstrated in court; does not prevent any governmental entity from 
requiring the disclosure of any information; and does not preclude any 
claim to the extent it is not based on a year 2000 statement.
  The Act prevents the use as evidence against the maker of only a 
narrow range of year 2000 statements--year 2000 readiness disclosures--
to prove the truth of the disclosure. They can, however, be put into 
evidence to demonstrate matters other than their truth. Further, year 
2000 readiness disclosures can be used to in contract litigation as 
part of the evidence necessary to show anticipatory breach, 
repudiation, or similar actions, although they should not be the sole 
evidence supporting liability. A judge can limit (but not totally 
abrogate) this protection in order to prevent an abusive or bad-faith 
use of the disclosure contrary to the purposes of the Act.
  Year 2000 statements other than year 2000 readiness disclosures can 
be brought into evidence for any purpose. However, they may not be the 
basis for any finding of liability against the maker, except where the 
maker knew the statement was false, made it with intent to deceive, or 
made it with reckless disregard as to its truth or falsity.
  In cases of alleged trade defamation, product disparagement, and the 
like, year 2000 statements generally can be the basis of liability only 
if the maker knew the statement was wrong or was reckless about the 
statement's truth or falsity.
  Internet website notice is generally deemed adequate. Important 
exceptions exist, however, and Internet website notice alone is not 
deemed adequate in cases of personal injury or serious property damage. 
In specified circumstances, in order to obtain the benefits of the Act, 
sellers, manufacturers, or providers of year 2000 remediation products 
or services must inform their customers about the effects of this Act 
during the course of solicitations or offers to sell.
  For purpose of actions brought under the securities laws, year 2000 
statements contained in filings with the Securities and Exchange 
Commission or Federal banking regulators and disclosures or writings 
that, when made, accompanied the solicitation of an offer or sale of 
securities are not covered by the Act.
  The following section-by-section analysis illustrates important 
details of the Act.

       Section 1, Short Title. This section entitles the Act the 
     ''Year 2000 Information and Readiness Disclosure Act''.
       Section 2, Findings and Purposes. This section lays out the 
     findings underlying the bill and the board purposes the bill 
     is intended to serve.
       Potentially millions of pieces of technology can not 
     recognize certain dates around the year 2000. Because year 
     2000 processing problems could incapacitate government, 
     commerce, and utilities, correcting the year 2000 problem is 
     a matter of national and global interest.
       Prompt, candid, and thorough disclosure and exchange of 
     information about year 2000 readiness would enhance year 2000 
     readiness. Concern about liability is impeding the sharing of 
     such information. Uniform legal standards regarding year 2000 
     information are in the national interest.
       Enacted under the Commerce Clause power, this Act's purpose 
     is to promote disclosure and exchange of year 2000 
     information by establishing uniform legal principles.
       Section 3. Definitions. This section defines various terms.
       The term ``antitrust laws'' means section (a)(1) of the 
     Clayton Act (15 U.S.C. Sec. 12(a)) and section 5 of the 
     Federal Trade Commission Act (15 U.S.C. Sec. 45), to the 
     extent that section applies to unfair competition, and 
     similar State law.
       The term ``consumer'' means an individual who acquires a 
     consumer product for purposes other than resale.

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       The term ``consumer product'' means any personal property 
     or service that is normally used for personal, family, or 
     household purposes.
       The term ``covered action''--used to define the types of 
     litigation subject to the Act--is intentionally broad. It 
     means a civil action of any kind arising under Federal or 
     State law, except one brought by a Federal, State, or other 
     government entity, agency, or authority acting in its 
     regulatory, supervisory, or enforcement capacity. In other 
     words, ``covered action'' does not include regulatory, 
     enforcement, and criminal actions brought by government 
     entities.
       The term ``maker'' means each person or entity, including a 
     State or subdivision thereof, that issues or publishes any 
     year 2000 statement. It also means each such person or entity 
     that prepares, develops, issues, approves, or publishes any 
     year 2000 statement. The term is defined very broadly to 
     ensure that all entities, public or private, may benefit from 
     the Act, including all those who help to make a year 2000 
     statement or readiness disclosure by reviewing, advising on, 
     or commenting on it. Fairness requires that anyone who 
     assists in the formulation of the year 2000 statement should 
     receive the same protection given to the entity that actually 
     issues or publishes the statement.
       The term ``republication'' means any repetition, in whole 
     or in part, of a year 2000 statement originally made by 
     another.
       The term ``year 2000 Internet website'' means an Internet 
     website or other similar electronically accessible service, 
     clearly designated as an area where year 2000 statements are 
     posted or otherwise made accessible to the public. Elsewhere, 
     the Act specifically recognizes use of the Internet and 
     similar means of communication for purposes of providing 
     notice. This is intended to encourage companies, government, 
     and the public to use all current technologies such as the 
     Internet to address year 2000 processing problems by sharing 
     and widely disseminating year 2000 information in as timely 
     and cost-effective manner as possible.
       The term ``year 2000 processing'' means processing, 
     transmitting, or receiving of date data from, into, and 
     between the 20th and 21st centuries, and leap year 
     calculations. The ``year 2000 problem'' or ``millennium bug'' 
     is not simply a software problem and is not strictly related 
     only to January 1, 2000. Year 2000 processing includes a wide 
     variety of date-related data processing functions in 
     microchips, software, ``firmware,'' and other products.
       The term ``year 2000 readiness disclosure'' means any 
     written year 2000 statement (a term defined elsewhere) 
     clearly identified on its face as a year 2000 readiness 
     disclosure, inscribed in a tangible medium or stored and 
     retrievable in perceivable form, and 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 entity. The ``year 2000 readiness 
     disclosure'' is a narrower, more highly protected subset of 
     year 2000 statements. Year 2000 readiness disclosures can 
     include the same year 2000-related subject matter as year 
     2000 statements. The difference is that year 2000 readiness 
     disclosures must be (a) clearly identified as such, (b) in 
     writing, and (c) about the maker's own products or services.
       The term ``year 2000 remediation product or service'' means 
     a program or service designed by one person or entity to 
     detect or correct year 2000 processing problems in the 
     product or service of a different person or entity. A ``year 
     2000 remediation product or service'' is not one that is 
     designed or used to detect or correct year 2000 processing 
     problems in its provider's own products or services. Under 
     this definition, the producer of a software program does not 
     provide a year 2000 remediation product or service if it 
     attempts to fix the product or service it provided, if it 
     provides an upgrade or ``patch'' for the product or service 
     it provided, or if it sells a product that essentially 
     replaces an existing product or service (regardless of who 
     manufactured or provided that product or service). In 
     contrast, a person or entity that sells products or services 
     for the purpose of detecting or correcting year 2000 
     processing problems in others' products (including 
     programming in microchips, software, and ``firmware''), does 
     offer year 2000 remediation products or services within the 
     meaning of this definition.
       The term ``year 2000 statement'' mean any communication or 
     other conveyance of information assessing year 2000 
     processing capabilities, concerning plans to verify year 2000 
     processing capabilities, concerning testing of year 2000 
     processing by products, or services utilizing products, or 
     relating to year 2000 processing. A year 2000 statement may 
     contain a very broad array of information potentially useful 
     to anyone seeking to discover, avoid, or correct a year 2000 
     processing problem. Year 2000 statements may be in any 
     format, oral or written, and address year 2000 processing or 
     readiness in any way.
       In actions under the securities laws (as that term is 
     defined in federal law), the term ``year 2000 statement'' 
     excludes statements in documents filed with the Securities 
     and Exchange Commission or with federal banking regulators, 
     as well as statements or writings made contemporaneously with 
     and accompanying an offer to engage in a securities 
     transaction. The latter part of this exclusion is intended 
     to apply to year 2000 statements that are incorporated in 
     an express solicitation--for example, year 2000 statements 
     made by a broker as part of a ``sales pitch'' designed to 
     induce the purchase of shares.
       Section 4. Protection for Year 2000 Statements. This 
     section and section 5 establish certain protections relating 
     to year 2000 statements and readiness disclosures. The two 
     sections are intended and designed to stimulate voluntary, 
     good faith information-sharing with the public, among 
     companies, and with the government. They limit certain uses 
     in litigation of year 2000 statements and readiness 
     disclosures. However, such limitations are themselves 
     restricted in order to promote--though they cannot 
     guarantee--only the sharing of useful and valid information.
       Section 4(a). Evidence Exclusion. No year 2000 readiness 
     disclosure shall be admissible against the maker to prove the 
     accuracy or truth of any year 2000 statement in such 
     readiness disclosure, except that a year 2000 readiness 
     disclosure may be admissible in a claim for anticipatory 
     breach, repudiation, or a similar claim against the maker. A 
     court may limit application of this subsection if the year 
     2000 disclosure amounted to bad faith or fraud or was well 
     beyond what is reasonable to achieve the purposes of the Act.
       Under this subsection, the narrow category of year 2000 
     readiness disclosures is given greater protection than year 
     2000 statements. Year 2000 readiness disclosures may not be 
     admitted into evidence against the maker to prove the truth 
     or accuracy of any matter asserted in them. This is meant to 
     provide protection for disclosure of all information, 
     including accurate and helpful information about the nature 
     and scope of year 2000 problems, solutions, and readiness.
       Subsection 4(a) does not create any new cause of action, 
     expand or reduce any existing cause of action, or otherwise 
     create any new right or obligation. Neither does this 
     subsection change or reduce any liability for a year 2000 
     failure, restrict alternative means of obtaining information, 
     or prevent any fact underlying a claim related to failed year 
     2000 processing from being demonstrated in court through 
     evidence other than year 2000 readiness disclosures. This 
     section does not prevent the maker of the year 2000 statement 
     within a year 2000 readiness disclosure from using its own 
     year 2000 readiness disclosure in litigation for any purpose.
       For example, in a breach of warranty action against a 
     manufacturer based on damages arising from a failed computer 
     system, a year 2000 readiness disclosure issued by the 
     manufacturer that contained a statement that the system had 
     year 2000 processing problems could not be introduced against 
     the manufacturer to prove that the system had year 2000 
     processing problems. Where a year 2000 readiness disclosure 
     included a statement that the system had no year 2000 
     processing problems, that statement could be admitted (along 
     with evidence that the maker knew it was false) to show that 
     the maker intended to mislead. In both cases, any information 
     provided by the manufacturer outside of the year 2000 
     readiness disclosure or obtained in discovery during the 
     litigation would be admissible to prove the existence of year 
     2000 processing problems.
       Subsection 4(a) has two narrow exceptions.
       First, year 2000 readiness disclosures may be admissible in 
     actions under anticipatory breach, repudiation, and similar 
     contract claims, however designated. In general, a year 2000 
     readiness disclosure should not be the sole evidence 
     supporting liability in such actions. A year 2000 readiness 
     disclosure suggesting that products or services have year 
     2000 processing problems should prompt concerned persons and 
     entities to thoroughly investigate the nature and scope of 
     the problem, and whether and how it affects the maker's 
     ability to perform under a contract. A year 2000 readiness 
     disclosure could, however, be specific enough to leave no 
     question about the maker's inability to perform on a 
     contract.
       Second, a judge may limit (but not totally abrogate) this 
     subsection's evidentiary protection in order to prevent a 
     fraudulent, bad faith, abusive, or similar use of the year 
     2000 readiness disclosure contrary to the purposes of the 
     Act. A judge cannot admit a year 2000 readiness disclosure at 
     will, but only if use of such disclosure goes clearly beyond 
     the purposes served by the Act. For example, a party should 
     not be permitted to simply mark all of its year 2000-related 
     documents as year 2000 readiness disclosures, send them to a 
     business partner, and claim that they are, thereby, not 
     admissible in an action related to a subsequent year 2000 
     processing failure.
       Subsection 4(b). Liability for False, Misleading, and 
     Inaccurate Year 2000 Statements. To the extent an action is 
     based on a false, inaccurate, or misleading year 2000 
     statement, the maker generally shall not be liable. If it was 
     not a republication, the maker may be liable if the statement 
     was material and if the maker made the year 2000 statement 
     with actual knowledge that it was false, inaccurate, or 
     misleading; with intent to deceive or mislead; or with 
     reckless disregard for its accuracy. The term ``reckless 
     disregard'' was derived from the public figure defamation 
     standard established by the Supreme Court in New York Times 
     v. Sullivan, 376 U.S. 254 (1964). If the year 2000 statement 
     was a republication, the maker may be liable if the year 2000 
     statement was material and if the maker made the year 2000 
     statement with actual knowledge that it was false, 
     inaccurate, or misleading; with intent to deceive or mislead; 
     or without notice in such year 2000 statement that the maker 
     has not

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     verified the contents of the republication, or that the maker 
     is not the source (in which case the source must be 
     identified in the year 2000 statement or the republication). 
     In addition to proving all other elements of the action, each 
     of these elements must be established by clear and convincing 
     evidence.
       Subsection 4(b) addresses protections provided to the 
     entire class of year 2000 statements. The intent is to ensure 
     that good-faith, honest attempts to provide important, needed 
     year 2000 information do not become the basis for liability 
     if the information later turns out to have been inaccurate in 
     some way. In an unprecedented, urgent, changing situation 
     such as dealing with the year 2000 problem, the best 
     information available today may be outdated tomorrow through 
     no fault or dereliction of the information's provider. 
     Subsection 4(b) treats statements differently when they 
     contain information obtained from another source, allowing 
     one source to republish information learned from another 
     if the republisher discloses that is doing so and 
     identifies the original source. When the republication is 
     made on an Internet website, notice provided on the 
     republisher's website can be adequate for this purpose 
     where the website contains clearly identified links to 
     websites maintained by the original source.
       Subsection 4(c). Liability for Defamation or Similar 
     Claims. In a defamation, trade disparagement, or similar 
     action based on an allegedly false, inaccurate, or misleading 
     year 2000 statement, the maker shall not be liable unless 
     clear and convincing evidence shows that the maker of the 
     year 2000 statement knew it was false or was reckless as to 
     whether it was true or false.
       Subsection 4(c) addresses the treatment of year 2000 
     statements alleged to be untrue in litigation based on 
     defamation, trade disparagement, or a similar claim, however 
     denominated. Here, the Act specifies that year 2000 
     statements, whether the maker is the source or merely passing 
     along information, may be the basis of liability only if all 
     other existing requirements of the claim are proved, and 
     there is a further showing, by clear and convincing evidence, 
     that the maker made the statement with knowledge of its 
     falsity, or with reckless disregard for the truth. The 
     standard here is modeled on the public figure defamation 
     standard established by the Supreme Court in New York Times 
     v. Sullivan, 376 U.S. 254 (1964).
       Subsection 4(d). Year 2000 Internet Website. When the 
     adequacy of notice about year 2000 processing is at issue, 
     posting notice in a commercially reasonable manner on a year 
     2000 website shall be deemed an adequate mechanism for 
     providing notice, unless this mechanism is contrary to prior 
     representations, is inconsistent with a regular course of 
     dealing, or occurs where actual notice is clearly most 
     reasonable. This section does not affect other law, require 
     notice regarding year 2000 processing, preclude or suggest 
     types of notice, or mandate the content or timing of any 
     notice.
       Subsection 4(d) is intended to encourage the use of the 
     Internet to provide notice of all matters relating to year 
     2000 processing problems and solutions. Because 
     technologically sophisticated parties have ready recourse to 
     the Internet, and because posting on a website provides a 
     cost-effective and widely accessible means of dispersing 
     information, this subsection makes it clear that, absent 
     contravening circumstances, website notice is appropriate. 
     Thus, subject to exceptions discussed below, use of an 
     Internet website to provide year 2000 information is deemed 
     adequate notice in any litigation in which the adequacy of 
     notice is at issue.
       The exceptions specified in this subsection include: (a) 
     cases where use of website notice would be contrary to 
     express prior representations regarding the mechanism of 
     notice that were made by the party giving notice; (b) cases 
     where reliance on website notice would be contrary to the 
     regular course of dealing between the parties (This exception 
     would apply where, for example, the party providing notice 
     has in the past engaged in a regular course of communicating 
     with the recipient by mail or telephone. In light of such a 
     regular practice, website notice would not be deemed 
     adequate.); and (c) cases, not involving prior 
     representations regarding notice or a regular course of 
     dealings between the parties, where actual notice is clearly 
     the most commercially reasonable means of providing notice.
       This last exception envisions circumstances where the cost 
     of providing actual notice is relatively low, the injury that 
     might be caused by a failure to provide notice is known to be 
     relatively high, the party providing notice knows the 
     identities of the potential recipients, and the party 
     providing notice has a practicable means of providing actual 
     notice. For example, this exception could come into play if a 
     vendor sold expensive or custom manufacturing components to 
     eleven manufacturers, knowing that notice of year 2000 
     processing problems is essential to operation of their 
     plants. In such circumstances, actual notice would likely be 
     the most commercially reasonable means of providing notice.
       In contrast, actual notice would not be commercially 
     reasonable if a producer sold numerous components or copies 
     of software to numerous third parties, who in turn 
     incorporated those products into products that were sold 
     further down the distribution chain, particularly to numerous 
     or unidentified. customers. In those circumstances, the 
     original producer could not by reasonable effort discover and 
     provide notice to all of the parties who ultimately came into 
     possession of its product and the producer could not know the 
     existence, nature, or scope of potential injury caused by not 
     providing actual notice. Website notice in this case would be 
     deemed adequate. The use of the word ``clearly'' in this 
     exception indicates that the presumption should be weighted 
     in favor of finding website notice to be adequate.
       Congress recognizes that the Internet and related 
     electronically accessible systems are fast becoming a 
     reliable, standard resource for transmission of information, 
     especially among sophisticated parties. It anticipates that 
     the primary or default means for providing notice of year 
     2000 processing information, year 2000 readiness disclosures, 
     and other information related to the year 2000 problem will 
     typically be the Internet and similar electronic formats. 
     However, this subsection does not alter Federal or State 
     statutory or regulatory (as distinct from common law) notice 
     requirements, and is not intended to increase the effect of 
     any existing law or duty regarding the method of providing, 
     or the content of notice. Moreover, this provision is not 
     intended to preclude the use of any other means of providing 
     notice.
       Subsection 4(e). Limitation on Effect of Year 2000 
     Statements. A year 2000 statement shall not amend or alter a 
     contract or warranty, unless the parties have agreed 
     otherwise, the year 2000 statement was made in conjunction 
     with formation of the contract or warranty, or the contract 
     or warranty provides for amendment or alteration through such 
     a statement.
       Subsection 4(e) addresses limitations on the effect of year 
     2000 statements (including year 2000 readiness disclosures). 
     Year 2000 statements do not, in general, amend or otherwise 
     alter an existing contract, tariff, or warranty. Exceptions 
     exist where there is a written agreement to so make 
     amendments, where the year 2000 statement was part of the 
     formation of a contract or warranty, and where the 
     contract, warranty, or tariff specifies that it may be 
     amended by a year 2000 statement. In those cases, other 
     law determines the effect of a year 2000 statement on a 
     contract, tariff, or warranty.
       Subsection 4(f). Special Data Gathering. A federal entity 
     may designate a request for voluntary provision of year 2000 
     information as a ``special year 2000 data gathering 
     request.'' Except with the consent of the provider of 
     information, such information shall not be subject to 
     disclosure under the Freedom of Information Act (``FOIA''), 
     shall not be disclosed to any third party, and may not be 
     used in any civil action (though the same information, 
     acquired separately, may be so used).
       Subsection 4(f) is premised on existing government power to 
     request voluntary submission of detailed company-specific 
     information in order to ascertain the year 2000 readiness of 
     an industry or economic sector. The government may request 
     that the information be submitted to a non-governmental 
     entity that agrees to coordinate such data gathering, 
     including providing analyses of that data. The subsection 
     protects any and all information provided to the government 
     or such third party voluntarily acting at the government's 
     request from release to any entity or individual without the 
     consent of the provider.
       This immunity is accomplished in three ways: (a) All 
     information provided pursuant to this process is deemed 
     exempt from disclosure under FOIA. (To the extent that such 
     provided data could be said to be held by the government 
     acting through a third party, FOIA would still not require 
     the release of such data without the submitting entity's 
     permission.); (b) Neither the government nor a third-party 
     data gatherer may disclose such data without the permission 
     of the providing entity; and (c) Neither the government nor 
     any third party may use the information, either directly or 
     indirectly, in any civil litigation.
       However, to ensure that this protection is not misused, the 
     subsection provides that information can be used by anyone 
     for any purpose if it has been voluntarily made public or if 
     it is obtained by independent legal means. A litigant may 
     utilize any lawful means to obtain information directly from 
     the providing entity, or from any recipient other than the 
     recipient under the special year 2000 data gathering request.
       Section 5. Temporary Antitrust Exemption. Consistent with 
     recent year 2000-related Business Action Letters issued by 
     the Department of Justice, this section provides that the 
     antitrust laws shall not apply to conduct or communications 
     solely for the purpose of correcting or avoiding year 2000 
     processing problems, and only to the extent necessary to 
     achieve such purposes. This broad exemption has certain 
     limitations. First, the exemption protects only conduct 
     occurring between the date of enactment of the Act and July 
     14, 2001 (inclusive) (as provided in subsection 7(a)). It 
     does not protect conduct occurring thereafter, though the 
     cessation of the statutory exemption need not affect the 
     position taken by the Department of Justice in Business 
     Action Letters. Second, this exemption does not apply to 
     conduct that involves or results in agreements to boycott any 
     person, allocate markets, or fix prices.
       Section 6. Exclusions.--
       Subsection 6(a). Effect on Information Disclosure. The Act 
     does not affect the authority of any government to require 
     provision or disclosure of any information. This subsection 
     clarifies that the intent of Congress is not to limit the 
     ability of a Federal or State entity,

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     agency, or authority to act in an enforcement capacity with 
     respect to any Federal or State statute or regulation 
     governing the disclosure or non-disclosure of information.
       Subsection 6(b). Contracts and Other Claims. The Act does 
     not alter any right under contract or tariff. In an action 
     brought by a consumer, the Act does not apply to a year 2000 
     statement made in the course of a solicitation. The Act does 
     not apply to a year 2000 statement about a year 2000 
     remediation product or service made in a solicitation unless 
     the maker provides notice that the year 2000 statement is 
     subject to the Act and that the Act may reduce the 
     purchaser's legal rights.
       Subsection 6(b)(1) reiterates that a basic premise of this 
     Act is to leave any contractual relationships (public or 
     private), and any enforcement of rights under those 
     relationships, unaffected. Where the terms or effect of a 
     contract are in conflict with the provisions of this Act, the 
     contract or agreement will control. Conversely, nothing in 
     the Act affects the enforceability of provisions that limit 
     the liability of contracting parties. Moreover, Congress does 
     not intend that plaintiffs use this provision to evade the 
     protections provided by this Act by restating as contract 
     claims causes of action that actually sound in tort.
       One example of the appropriate use of this provision would 
     be where a contract provided one party with the explicit 
     contractual right to receive from another party an accurate 
     year 2000 statement or a year 2000 statement which is the 
     product of the exercise of ``reasonable efforts'' by the 
     other party. In that situation, subsection 4(b)--which 
     provides a different standard of performance--would not 
     apply. Similarly, where a contract provides for delivery of 
     notice by means other than an Internet website, this Act 
     would not treat notice delivered via an Internet website as 
     adequate. In addition, the evidentiary exclusion of 
     subsection 4(a) would not apply in a situation where a party 
     provides a year 2000 readiness disclosure pursuant to a 
     contractual obligation to provide year 2000 readiness 
     information.
       Subsection 6(b)(2)(A) provide that the Act does not apply 
     in actions by consumers against persons or entities that make 
     year 2000 statements directly to them in solicitations 
     (including advertisements) or offers to sell consumer 
     products--in other words, activities that are entirely 
     ancillary to requests for purchases.
       Subsection 6(b)(2)(B) provides that sellers, manufacturers, 
     or providers of year 2000 remediation products or services, 
     in soliciting remediation business or offering to furnish 
     their remediation product or service, must provide additional 
     notice to obtain the benefits of the Act. Such notice is 
     specified in the Act and is intended primarily to alert 
     unsophisticated clients of such remediators that, in any 
     litigation, this Act may affect the buyer's ability to use 
     the remediators' statements in court. This provision does 
     not require or imply that every written or oral statement 
     be accompanied by the specified notice. Rather, it is 
     intended to require that once, during the solicitation or 
     offering of service, the remediation provider must provide 
     the specified notice to the prospective purchaser or 
     client, consistent with the procedures set out in 
     Subsection 4(d).
       Subsection 6(b)(3) provides that the Act does not preclude 
     a claim to the extent it is not based on a year 2000 
     statement. For example, if a lawsuit advanced causes of 
     action both for negligent misrepresentation based on the 
     alleged inaccuracy of a year 2000 statement and for product 
     defect (based on a year 2000-related product failure), the 
     first cause of action would likely be precluded by the Act, 
     but the second would not.
       Subsection 6(c). Duty or Standard of Care. The Act does not 
     impose any more stringent standard of care on the maker of a 
     year 2000 statement. The Act does not preclude any disclosure 
     additional to a year 2000 statement or disclosure. The Act 
     does not alter the standard or duty of care owed by a 
     fiduciary.
       An essential purpose of the Act is to reduce liability 
     concerns about release of year 2000 processing information. 
     Consistent with that purpose, Subsection 6(c)(1) provides 
     that nothing in this Act should be interpreted as imposing 
     liability where none would exist absent the Act. 
     Specifically, it is the intent of Congress that a maker not 
     be liable for the adequacy or sufficiency of a year 2000 
     readiness disclosure regarding the maker's products or 
     services, where notice of the maker's year 2000 readiness is 
     not otherwise required by law or contract, unless section 
     4(b) standards are not met.
       Also, Subsection 6(c)(3) is intended to clarify that 
     Congress did not intend the Act--except to the limited extent 
     specified in Subsection 4(b), regarding false, misleading or 
     inaccurate year 2000 statements, and in Subsection 4(c), 
     regarding defamatory or disparaging year 2000 statements--to 
     preempt, alter, or affect in any way existing State law 
     regarding any duty or standard of care owed by a fiduciary. 
     For instance, the duty of loyalty owed by a fiduciary is not 
     affected by this Act.
       Intellectual Property Rights. The Act does not affect any 
     party's intellectual property rights of any kind whatsoever.
       Injunctive Relief. The Act does not preclude injunctive 
     relief. Thus, for instance, while a claim for damages 
     resulting from a false, inaccurate, or misleading year 2000 
     statement is governed by subsection 4(b), that subsection has 
     no impact on the right of a claimant to receive injunctive 
     relief preventing further communication of false or 
     misleading information contained in a year 2000 statement.
       Section 7. Applicability.--
       Effective Date. The Act is effective on the date of its 
     enactment. It applies to lawsuits brought after July 14, 1998 
     that deal with (a) year 2000 statements made between July 14, 
     1998 and July 14, 2001 (inclusive); (b) year 2000 readiness 
     disclosures made between the date of enactment of the Act and 
     July 14, 2001 (inclusive); and (c) year 2000 statements 
     designated as year 2000 readiness disclosures (as described 
     below).
       Previously Made Readiness Disclosure. A year 2000 statement 
     made between January 1, 1996 and the date of enactment of the 
     Act (inclusive) may be designated a year 2000 readiness 
     disclosure if it complied with the requirements of a year 
     2000 readiness disclosure (other than being designated a 
     ``year 2000 readiness disclosure'') at the time it was made 
     and if, within 45 days of the enactment of the Act, the maker 
     gives individual notice of the designation to prior 
     recipients or posts such notice on its year 2000 website and 
     gives such notice by the same method the year 2000 statement 
     was previously made. Designation of a year 2000 statement as 
     a year 2000 readiness disclosure shall not have effect 
     against any person or entity who proves by clear and 
     convincing evidence that it would be prejudiced by the 
     designation and who timely objects to the designation.
       Section 8. Year 2000 Council Working Groups. The 
     President's year 2000 Conversion Council (see Exec. Order 
     13,073, 63 Fed. Reg. 6,467 (1998)) may establish working 
     groups who will engage outside organizations to address year 
     2000 problems. The Council shall maintain public information 
     on the working groups and their members. The Council shall 
     seek balance among the working groups. The Council shall 
     maintain and publish information on attendance and 
     participation at meetings. Meetings shall be announced in 
     advance and held publicly, to the extent consistent with the 
     Act's purposes. The Federal Advisory Committee Act shall not 
     apply to working groups.
       This section replaces the Federal Advisory Committee Act 
     requirements which otherwise might have been applicable to 
     some of the work of the Council. Though the Act gives the 
     Council no new powers, working groups may be established by 
     the Council to advise it, discuss year 2000 problems in 
     various sectors of the nation's economy, share information, 
     and otherwise promote the purposes of this Act. Congress 
     expects that the Council will disband, rendering this section 
     inoperative, reasonably promptly after the turn of the 
     century.
       Section 9. National Information Clearinghouse and Website. 
     In cooperation with other Federal agencies and with the 
     private sector, the General Services Administration (``GSA'') 
     shall establish and maintain until July 14, 2002 a national 
     year 2000 website, designed to assist consumers, small 
     businesses, and local governments in obtaining various year 
     2000 information. GSA shall consult with a variety of federal 
     entities. GSA shall report to Congress 60 days after the 
     enactment of the Act on compliance with this section.

     

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