Text: S.2392 — 105th Congress (1997-1998)All Information (Except Text)

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Public Law No: 105-271 (10/19/1998)

 
[105th Congress Public Law 271]
[From the U.S. Government Printing Office]


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[DOCID: f:publ271.105]


[[Page 2385]]

           YEAR 2000 INFORMATION AND READINESS DISCLOSURE ACT

[[Page 112 STAT. 2386]]

Public Law 105-271
105th Congress

                                 An Act


 
 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 
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.

[[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 
        problems; and
            (3) to lessen burdens on interstate commerce by establishing 
        certain uniform legal principles in connection with the 
        disclosure and exchange of information related to year 2000 
        readiness.

SEC. 3. DEFINITIONS.

    In this Act:
            (1) Antitrust laws.--The term ``antitrust laws''--
                    (A) has the meaning given to it in subsection (a) of 
                the first section of the Clayton Act (15 U.S.C. 12(a)), 
                except that such term includes section 5 of the Federal 
                Trade Commission Act (15 U.S.C. 45) to the extent such 
                section 5 applies to unfair methods of competition; and
                    (B) includes any State law similar to the laws 
                referred to in subparagraph (A).
            (2) Consumer.--The term ``consumer'' means an individual who 
        acquires a consumer product for purposes other than resale.
            (3) Consumer product.--The term ``consumer product'' means 
        any personal property or service which is normally used for 
        personal, family, or household purposes.
            (4) Covered action.--The term ``covered action'' means 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 
        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

[[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 
        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.

[[Page 112 STAT. 2389]]

                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

[[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 
                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.--

[[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 
        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 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

[[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 
        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.

[[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, 
                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) <<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 
                      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

[[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 
        (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) <<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 
        section.
            (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 
        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) <<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.

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