Text: S.2392 — 105th Congress (1997-1998)All Information (Except Text)
Public Law No: 105-271 (10/19/1998)
[105th Congress Public Law 271]
[From the U.S. Government Printing Office]
YEAR 2000 INFORMATION AND READINESS DISCLOSURE ACT
[[Page 112 STAT. 2386]]
Public Law 105-271
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. <<NOTE: Oct. 19, 1998 - [S. 2392]>>
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled, <<NOTE: Year 2000
Information and Readiness Disclosure Act. 15 USC 1 note.>>
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Year 2000 Information and Readiness
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;
(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
(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
(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.
[[Page 112 STAT. 2387]]
(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
(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
SEC. 3. DEFINITIONS.
In this Act:
(1) Antitrust laws.--The term ``antitrust laws''--
(A) has the meaning given to it in subsection (a) of
the first section of the Clayton Act (15 U.S.C. 12(a)),
except that such term includes section 5 of the Federal
Trade Commission Act (15 U.S.C. 45) to the extent such
section 5 applies to unfair methods of competition; and
(B) includes any State law similar to the laws
referred to in subparagraph (A).
(2) Consumer.--The term ``consumer'' means an individual who
acquires a consumer product for purposes other than resale.
(3) Consumer product.--The term ``consumer product'' means
any personal property or service which is normally used for
personal, family, or household purposes.
(4) Covered action.--The term ``covered action'' means a
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
(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
[[Page 112 STAT. 2388]]
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
(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
(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
(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.
[[Page 112 STAT. 2389]]
781(i)), or disclosures or writing that when made
accompanied the solicitation of an offer or sale of
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
(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
(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
(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
(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
[[Page 112 STAT. 2390]]
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
(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
(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
(ii) to a year 2000 statement made in
conjunction with the formation of the contract 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.--
[[Page 112 STAT. 2391]]
(1) In general.--A Federal entity, agency, or authority may
expressly designate a request for the voluntary provision of
information relating to year 2000 processing, including year
2000 statements, as a special year 2000 data gathering request
made pursuant to this subsection.
(2) Specifics.--A special year 2000 data gathering request
made under this subsection shall specify a Federal entity,
agency, or authority, or, with its consent, another public or
private entity, agency, or authority, to gather responses to the
(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 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.
(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
[[Page 112 STAT. 2392]]
to boycott any person, to allocate a market, or to 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
(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.
[[Page 112 STAT. 2393]]
(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,
(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
(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) <<NOTE: Deadline.>> 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 uses the same method of notification used to
originally provide the applicable year 2000
(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
(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
[[Page 112 STAT. 2394]]
described in subsection (b)(1)(B) 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
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) <<NOTE: Records. Public information.>> 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
(3) Balance.--The Council shall seek to achieve a balance of
participation and representation among the working groups.
(4) Attendance.--The <<NOTE: Records. Public
information.>> Council shall maintain and make available to the
public a printed and electronic list of working group members
who attend each meeting of a working group as well as any other
individuals or organizations participating in each meeting.
(5) Meetings.--Each meeting of a working group shall be
announced in advance in accordance with procedures established
by the Council. The Council shall encourage working groups to
hold meetings open to the public to the extent feasible and
consistent with the activities of the Council and the purposes
of this Act.
(b) FACA.--The Federal Advisory Committee Act (5 U.S.C. App.) shall
not apply to the working groups established under this section.
(c) Private Right of Action.--This section creates no private right
of action to sue for enforcement of the provisions of this section.
(d) Expiration.--The authority conferred by this section shall
expire on December 31, 2000.
SEC. 9. NATIONAL INFORMATION CLEARINGHOUSE AND WEBSITE.
(a) National Website.--
(1) In general.--The Administrator of General Services shall
create and maintain until July 14, 2002, a national year 2000
website, and promote its availability, designed to assist
consumers, small business, and local governments in obtaining
information from other governmental websites, hotlines, or
information clearinghouses about year 2000 processing of
computers, systems, products, and services, including websites
maintained by independent agencies and other departments.
[[Page 112 STAT. 2395]]
(2) Consultation.--In creating the national year 2000
website, the Administrator of General Services shall consult
(A) the Director of the Office of Management and
(B) the Administrator of the Small Business
(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;
(G) representatives of other entities, as determined
(b) <<NOTE: Deadline.>> 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.
Approved October 19, 1998.
LEGISLATIVE HISTORY--S. 2392:
CONGRESSIONAL RECORD, Vol. 144 (1998):
Sept. 28, considered and passed Senate.
Oct. 1, considered and passed House.
WEEKLY COMPILATION OF PRESIDENTIAL DOCUMENTS, Vol. 34 (1998):
Oct. 19, Presidential statement.