[Congressional Record (Bound Edition), Volume 145 (1999), Part 9]
[Senate]
[Pages 12392-12394]
[From the U.S. Government Publishing Office, www.gpo.gov]



                          AMENDMENTS SUBMITTED

                                 ______
                                 

                                Y2K ACT

                                 ______
                                 

                       EDWARDS AMENDMENT NO. 619

  Mr. EDWARDS proposed an amendment to amendment No. 608 proposed by 
Mr. McCain to the bill (S. 96) to regulate commerce between and among 
the several States by providing for the orderly resolution of disputes 
arising out of computer-based problems relating to processing data that 
includes a 2-digit expression of the year's date; as follows:

       Strike Section 12 and insert the following:

     ``SEC. 12. DAMAGES IN TORT CLAIMS.

       ``A party to a Y2K action making a tort claim may only 
     recover for economic losses to the extent allowed under 
     applicable state or federal law in effect on January 1, 
     1999.''.
                                 ______
                                 

                       EDWARDS AMENDMENT NO. 620

  Mr. EDWARDS proposed an amendment to amendment No. 608 proposed by 
Mr. McCain to the bill, S. 96, supra; as follows:

       On page 7, line 17, after ``capacity'' strike ``.'' and 
     insert:
       ``; and
       ``(D) does not include an action in which the plaintiff's 
     alleged harm resulted from an actual or potential Y2K failure 
     of a product placed without reasonable care into the stream 
     of commerce after January 1, 1999, or to a claim or defense 
     related to an actual or potential Y2K failure of a product 
     placed without reasonable care into the stream of commerce 
     after January 1, 1999. However, Section 7 of this Act shall 
     apply to such actions.''
                                 ______
                                 

                        BOXER AMENDMENT NO. 621

  Mrs. BOXER proposed an amendment to amendment No. 608 proposed by Mr.

[[Page 12393]]

McCain to the bill, S. 96, supra; as follows:

       In section 7(e) insert at the end the following:
       (5) Special rule.--
       (A) In general.--With respect to a defendant that is a 
     manufacturer of a device or system (including any computer 
     system and any microchip or integrated circuit embedded in 
     another device or product), or any software, firmware, or 
     other set or collection of processing instructions to 
     process, to calculate, to compare, to sequence, to display, 
     to store, to transmit, or to receive year-2000 date-related 
     data that experienced a Y2K failure, the defendant shall, 
     during the remediation period provided in this subsection--
       (i) make available to the plaintiff a repair or 
     replacement, if available, at the actual cost to the 
     manufacturer, for a device or other product that was first 
     introduced for sale after January 1, 1990 and before January 
     1, 1995; and
       (ii) make available at no charge to the plaintiff a repair 
     or replacement, if available, for a device or other product 
     that was first introduced for sale after December 31, 1994.
       (B) Damages.--If a defendant fails to comply with this 
     paragraph, the court shall consider that failure in the award 
     of any damages, including economic loss and punitive damages.
                                 ______
                                 

                        INHOFE AMENDMENT NO. 622

  Mr. GORTON (for Mr. Inhofe) proposed an amendment to the bill S. 96, 
supra; as follows:

       On page 11, between lines 22 and 23, insert the following:
       (6) Application to actions brought by a governmental 
     entity.--
       (1) In general.--To the extent provided in this subsection, 
     this Act shall apply to anaction brought by a governmental 
     entity described in section 3(1)(C).
       (2) Definitions.--In this subsection:
       (A) Defendant.--
       (i) In general.--The term ``defendant'' includes a State or 
     local government.
       (ii) State.--The term ``State'' means each of the several 
     States of the United States, the District of Columbia, the 
     Commonwealth of Puerto Rico, the Virgin Islands, Guam, 
     American Samoa, and the Commonwealth of the Northern Mariana 
     Islands.
       (iii) Local government.--The term ``local government'' 
     means--

       (I) any county, city, town, township, parish, village, or 
     other general purpose political subdivision of a State; and
       (II) any combination of political subdivisions described in 
     subclause (I) recognized by the Secretary of Housing and 
     Urban Development.

       (B) Y2k upset.--The term ``Y2K upset''--
       (i) means an exceptional incident involving temporary 
     noncompliance with applicable federally enforceable 
     measurement or reporting requirements because of factors 
     related to a Y2K failure that are beyond the reasonable 
     control of the defendant charged with compliance; and
       (ii) does not include--

       (I) noncompliance with applicable federally enforceable 
     requirements that constitutes or would create an imminent 
     threat to public health, safety, or the environment;
       (II) noncompliance with applicable federally enforceable 
     requirements that provide for the safety and soundness of the 
     banking or monetary system, including the protection of 
     depositors;
       (III) noncompliance to the extent caused by operational 
     error or negligence;
       (IV) lack of reasonable preventative maintenance; or
       (V) lack of preparedness for Y2K.

       (3) Conditions necessary for a demonstration of a y2k 
     upset.--A defendant who wishes to establish the affirmative 
     defense of Y2K upset shall demonstrate, through properly 
     signed, contemporaneous operating logs, or other relevant 
     evidence that--
       (A) the defendant previously made a good faith effort to 
     effectively remediate Y2K problems;
       (B) a Y2K upset occurred as a result of a Y2K system 
     failure or other Y2K emergency;
       (C) noncompliance with the applicable federally enforceable 
     measurement or reporting requirement was unavoidable in the 
     face of a Y2K emergency or was intended to prevent the 
     disruption of critical functions or services that could 
     result in the harm of life or property;
       (D) upon identification of noncompliance the defendant 
     invoking the defense began immediate actions to remediate any 
     violation of federally enforceable measurement or reporting 
     requirements; and
       (E) the defendant submitted notice to the appropriate 
     Federal regulatory authority of a Y2K upset within 72 hours 
     from the time that it became aware of the upset.
       (4) Grant of a y2k upset defense.--Subject to the other 
     provisions of this subsection, the Y2K upset defense shall be 
     a complete defense to any action brought as a result of 
     noncompliance with federally enforceable measurement or 
     reporting requirements for any defendant who establishes by a 
     preponderance of the evidence that the conditions set forth 
     in paragraph (3) are met.
       (5) Length of y2k upset.--The maximum allowable length of 
     the Y2K upset shall be not more than 15 days beginning on the 
     date of the upset unless granted specific relief by the 
     appropriate regulatory authority.
       (6) Violation of a y2k upset.--Fraudulent use of the Y2K 
     upset defense provided for in this subsection shall be 
     subject to penalties provided in section 1001 of title 18, 
     United States Code.
       (7) Expiration of Defense.--The Y2K upset defense may not 
     be asserted for a Y2K upset occurring after June 30, 2000.
       At the appropriate place, insert the following:

     SEC.   . CREDIT PROTECTION FROM YEAR 2000 FAILURES.

       (a) In General.--No person who transacts business on 
     matters directly or indirectly affecting mortgages, credit 
     accounts, banking, or other financial transactions shall 
     cause or permit a foreclosure, default, or other adverse 
     action against any other person as a result of the improper 
     or incorrect transmission or inability to cause transaction 
     to occur, which is caused directly or indirectly by an actual 
     or potential Y2K failure that results in an inability to 
     accurately or timely process any information or data, 
     including data regarding payments and transfers.
       (b) Scope.--The prohibition of such adverse action to 
     enforce obligations referred to in subsection (a) includes 
     but is not limited to mortgages, contracts, landlord-tenant 
     agreements, consumer credit obligations, utilities, and 
     banking transactions.
       (c) Adverse Credit Information.--The prohibition on adverse 
     action in subsection (a) includes the entry of any negative 
     credit information to any credit reporting agency, if the 
     negative credit information is due directly or indirectly by 
     an actual or potential disruption of the proper processing of 
     financial responsibilities and information, or the inability 
     of the consumer to cause payments to be made to creditors 
     where such inability is due directly or indirectly to an 
     actual or potential Y2K failure.
       (d) Actions May Resume After Problem Is Fixed.--No 
     enforcement or other adverse action prohibited by subsection 
     (a) shall resume until the obligor has a reasonable time 
     after the full restoration of the ability to regularly 
     receive and dispense data necessary to perform the financial 
     transaction required to fulfill the obligation.
       (e) Section Does Not Apply to Non-Y2K-Related Problems.--
     This section shall not affect transactions upon which a 
     default has occurred prior to a Y2K failure that disrupts 
     financial or data transfer operations of either party.
       (f) Enforcement of Obligations Merely Tolled.--This section 
     delays but does not prevent the enforcement of financial 
     obligations.
                                 ______
                                 

                       SESSIONS AMENDMENT NO. 623

  Mr. SESSIONS proposed an amendment to amendment No. 608 proposed by 
Mr. McCain to the bill, S. 96, supra; as follows:

       At an appropriate place, add the following section:

     SEC.  . ADMISSIBLE EVIDENCE ULTIMATE ISSUE IN STATE COURTS.

       Any party to a Y2K action in a State court in a State that 
     has not adopted a rule of evidence substantially similar to 
     Rule 704 of the Federal Rules of Evidence may introduce in 
     such action evidence that would be admissible if Rule 704 
     applied in that jurisdiction.
                                 ______
                                 

                   GREGG (AND BOND) AMENDMENT NO. 624

  Mr. GREGG (for himself and Mr. Bond) proposed an amendment to 
amendment No. 608 proposed by Mr. McCain to the bill, S. 96, supra; as 
follows:

       At the appropriate place, insert the following:

     SEC. __. SUSPENSION OF PENALTIES FOR CERTAIN YEAR 2000 
                   FAILURES BY SMALL BUSINESS CONCERNS.

       (a) Definitions.--In this section--
       (1) the term ``agency'' means any executive agency, as 
     defined in section 105 of title 5, United States Code, that 
     has the authority to impose civil penalties on small business 
     concerns;
       (2) the term ``first-time violation'' means a violation by 
     a small business concern of a Federal rule or regulation 
     resulting from a Y2K failure if that Federal rule or 
     regulation had not been violated by that small business 
     concern within the preceding 3 years; and
       (3) the term ``small business concern'' has the meaning 
     given such term in section 3 of the Small Business Act (25 
     U.S.C. 632).
       (b) Establishment of Liaisons.--Not later than 30 days 
     after the date of enactment of this section each agency 
     shall--
       (1) establish a point of contact within the agency to act 
     as a liaison between the agency and small business concerns 
     with respect to problems arising out of Y2K failures and 
     compliance with Federal rules or regulations; and
       (2) publish the name and phone number of the point of 
     contact for the agency in the Federal Register.
       (c) General Rule.--Subject to subsections (d) and (e), no 
     agency shall impose any civil

[[Page 12394]]

     money penalty on a small business concern for a first-time 
     violation.
       (d) Standards for Waiver.--In order to receive a waiver of 
     civil money penalties from an agency for a first-time 
     violation, a small business concern shall demonstrate that--
       (1) the small business concern previously made a good faith 
     effort to effectively remediate Y2K problems;
       (2) a first-time violation occurred as a result of the Y2K 
     system failure of the small business concern or other entity, 
     which affected the small business concern's ability to comply 
     with a federal rule or regulation;
       (3) the first-time violation was unavoidable in the face of 
     a Y2K system failure or occurred as a result of efforts to 
     prevent the disruption of critical functions or services that 
     could result in harm to life or property;
       (4) upon identification of a first-time violation, the 
     small business concern initiated reasonable and timely 
     measures to remediate the violation; and
       (5) the small business concern submitted notice to the 
     appropriate agency of the first-time violation within a 
     reasonable time not to exceed 7 business days from the time 
     that the small business concern became aware that a first-
     time violation had occurred.
       (e) Exceptions.--An agency may impose civil money penalties 
     authorized under Federal law on a small business concern for 
     a first-time violation if the small business concern fails to 
     correct the violation not later than 6 months after initial 
     notification to the agency.

                          ____________________