HR 4455, Year 2000 Readiness Disclosure Act.
Re: Encouraging Y2K disclosure, and limiting liability.
Date introduced: August 6, 1998.
Source: Rep. David Dreier.

105TH CONGRESS
2D SESSION

H.R. 4455

IN THE HOUSE OF REPRESENTATIVES

Mr. DREIER [for himself and Ms. ESHOO, Mr. GOODLATTE, Mr. BOUCHER, Mr. COX, Mr. JOHN, Mr. BOEHNER, Ms. MORELLA, Mr. SESSIONS, Mr. SOLOMON, Mr. HAYWORTH and Mr. ROYCE] introduced the following bill; which was referred to the Committee on _______________

A BILL

To encourage the disclosure and exchange of information about computer processing problems and related matters in connection with the transition to the Year 2000.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION. 1. SHORT TITLE.

This Act may be cited as the "Year 2000 Readiness Disclosure Act".

SEC. 2. FINDINGS AND PURPOSES.

(a) FINDINGS.- The Congress finds the following:

(1) Thousands of 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 they represent the year 1900 or thereafter or will fail to process such dates. This problem and resulting failures could incapacitate systems that are essential to the functioning of markets, commerce, consumer products, utilities, government, and safety systems in the United States and throughout the world. Reprogramming or replacing affected systems before this 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 would greatly enhance the ability of public and private entities to improve their Year 2000 readiness and, thus, is a matter of national importance and a vital factor in minimizing 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 compliance information is impeding the disclosure and exchange of such information.

(4) The capability to freely disseminate and exchange information relating to Year 2000 readiness with the public and with other companies without undue concern about litigation is critical to the ability of public and private entities to address Year 2000 needs in a timely manner.

(5) The national interest will be served by uniform legal standards in connection with the disclosure and exchange of Year 2000 readiness information that will promote disclosures and exchanges of such information in a timely fashion.

(b) PURPOSES.- Based upon the powers contained in Article I, Section 8, Clause 3 of the United States Constitution, the purposes of this Act are to promote the free disclosure and exchange of information related to Year 2000 readiness and 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.

For purposes of this Act, the following definitions apply:

(1) YEAR 2000 STATEMENT.-The term "Year 2000 statement" means any statement -

(A) concerning an assessment, projection, or estimate concerning Year 2000 processing capabilities of any entity, product, or service, or a set of products or services;

(B) concerning plans, objectives, or timetables for implementing or verifying the Year 2000 processing capabilities of an entity, a product, or service, or a set of products or services;

(C) concerning test plans, test dates, test results, or operational problems or solutions related to Year 2000 processing by-

(i) products;

(ii) services that incorporate or utilize products;

(D) attesting to, opining on, reviewing, or otherwise commenting on, a Statement constituting a Year 2000 Statement; or

(E) otherwise directly or indirectly relating to Year 2000 processing capabilities

(2) YEAR 2000 READINESS DISCLOSURE.- The term "Year 2000 Readiness Disclosure" means any written Year 2000 Statement identified on its face as a "Year 2000 Readiness Disclosure".

(3) DISCLOSURE.- The term "Disclosure" means a Year 2000 Readiness Disclosure.

(4) STATEMENT.- The term "Statement" means any Statement, communication, or other conveyance of information by one party to another or to the public, in any form or medium whatsoever, excluding, for the purposes of actions brought by the Securities and Exchange Commission or the United States 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)), 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. 78l(i)).

(5) YEAR 2000 PROCESSING.- The term "Year 2000 processing" means the processing (including calculating, comparing, sequencing, displaying, or storing), transmitting, or receiving of date or date/time data during, from, into, and between the twentieth and twenty-first centuries, and the years 1999 and 2000, and leap year calculations.

(6) YEAR 2000 INTERNET WEBSITE.- The term "Year 2000 Internet Website" means an Internet website or other similar electronically accessible service, designated on the website or service by the person creating or controlling the website or service as an area where Year 2000 Readiness Disclosures and other information about the Year 2000 processing capabilities of an entity, a product, service, or a set of products or services, are posted or otherwise made accessible to the general public.

(7) COVERED ACTION.- The term "covered action" means any civil action of any kind, whether arising under Federal or State law, except for any civil action arising under Federal or State law brought by a Federal, State, or other public entity, agency, or authority acting in a regulatory, supervisory, or enforcement capacity.

(8) REPUBLICATION.- The term "republication" means any repetition of a Statement originally made by another.

(9) CONSUMER.- The term "consumer" means a natural person who buys a consumer product other than for purposes of resale.

(10) CONSUMER PRODUCT.- The term "consumer product" means any personal property which is normally used for personal, family, or household purposes. (11) MAKER -- The term "maker" means any person or entity that-

(A) makes, develops, publishes, transmits, or distributes;

(B) assists, contributes to, or otherwise takes part in, making, publishing, transmitting or distributing; or

(C) attests to, opines on, reviews, or otherwise comments on any Disclosure.

SEC. 4. PROTECTION FOR YEAR 2000 READINESS DISCLOSURES.

(a) IN GENERAL. - In any covered action -

(1) no Year 2000 Readiness Disclosure or any portion thereof shall be admissible unless the proponent of admissibility of the Disclosure establishes, in addition to all other applicable requirements of admissibility, that the Disclosure was material, and-

(A) that the Disclosure was made with -

(i) knowledge that the Disclosure was false or misleading; and

(ii) an intent to deceive; or

(B) where the Disclosure was or included a republication regarding a third party, that -

(i) the republication was made without a disclosure by the maker that the Disclosure is based on a republication; and

(ii) the maker has not verified the original Statement; and

(2) to the extent such action is based on an allegedly false, inaccurate, or misleading Year 2000 Statement, the maker of any such Statement shall not be liable under Federal or State law with respect thereto unless the claimant establishes, in addition to all other requisite elements of the applicable action, that the Statement was material, and -

(A) that the Statement was made with -

(i) knowledge that the Statement was false or misleading; and

(ii) an intent to deceive; or

(B) where the Statement was or included a republication regarding a third party, that -

(i) the Statement was made without a disclosure by the maker that the Statement is based on a republication; and

(ii) the maker has not verified the original Statement; and

(b) YEAR 2000 INTERNET WEBSITE.- In any covered action in which the adequacy of notice about Year 2000 processing is at issue, and except as provided by contract, the posting of a notice by the entity purporting to have provided such notice on that entity's Year 2000 Internet Website shall be presumed to be an adequate mechanism for providing such notice. Nothing in this subsection (b) shall-

(1) alter or amend any Federal or State statute or regulation requiring that notice about Year 2000 processing be provided using a different mechanism;

(2) create a duty to provide notice about Year 2000 processing;

(3) preclude or suggest the use of any other medium for notice about Year 2000 processing or require the use of an Internet Website; or

(4) mandate the content or timing of any notices about Year 2000 processing.

(c) LIMITATION ON EFFECT OF YEAR 2000 READINESS DISCLOSURES. - In any covered action, no Year 2000 Readiness Disclosure shall be interpreted or construed as an amendment to, or alteration of, a written contract or written warranty, whether entered into by a public or private party. This subsection shall not apply-

(1) to the extent the party whose Statement is alleged to have amended or altered a contract or warranty has otherwise agreed in writing to so alter or amend the written contract or written warranty;

(2) to Year 2000 Readiness Disclosures expressed in a writing that constitutes the written contract or written warranty; or

(3) where the contract or warranty specifically provides for its amendment or alteration through the making of a Year 2000 Readiness Disclosure.

(d) SPECIAL DATA GATHERING. - A Federal entity, agency, or authority may expressly designate requests for the voluntary provision of information relating to Year 2000 processing (including Year 2000 Readiness Disclosures) as "Special Year 2000 Data Gathering Requests" made pursuant to this subsection. Information provided in response to such requests shall be prohibited from disclosure to any third party, including disclosure under section 552 of title 5, United States Code, and may not be used, directly or indirectly, in any civil action arising under any Federal or State law. Nothing in this subsection precludes a Federal entity, agency, or authority from separately obtaining the information submitted in response to this subsection through the use of independent legal authorities and using such separately obtained information in any action.

SEC. 5. EXCLUSIONS.

(a) EFFECT ON INFORMATION DISCLOSURE. - This Act does not affect, abrogate, amend, or alter, and shall not be construed to affect, abrogate, amend, or alter, the authority of a Federal or State entity, agency, or authority to enforce a requirement to provide, disclose, or not to disclose, information under a Federal or State statute or regulation or to enforce such statute or regulation.

(b) CONTRACTS AND OTHER CLAIMS. - Except as may be otherwise provided in this Act, this Act does not affect, abrogate, amend, or alter, and shall not be construed to affect, abrogate, amend, or alter, any right by written contract between the plaintiff and the defendant, under any Federal or State law, or affect Statements made directly to a consumer in a writing that constitutes a written contract for the sale of a consumer product by the seller or manufacturer of the consumer product.

(c) DUTY OR STANDARD OF CARE. - This Act shall not be deemed to impose upon the maker of any Year 2000 Readiness Disclosure any increased obligation, duty, or standard of care than is otherwise applicable under Federal or State law. This Act does not preclude any party from making or providing any additional disclaimer or like provisions in connection with any Year 2000 Readiness Disclosure.

(d) INTELLECTUAL PROPERTY RIGIITS - This Act does not affect, abrogate, amend, or alter, and shall not be construed to affect, abrogate, amend, or alter, any right in a patent, copyright, trademark, trade name, or service mark, under any Federal or State law.

(e) INJUNCTIVE RELIEF. - Nothing in this Act shall be deemed to preclude a claimant from seeking temporary or permanent injunctive relief with respect to a Year 2000 Readiness Disclosure, subject to the limitations on admissibility imposed by this Act.

SEC. 6. APPLICABILITY

This Act shall apply to any Year 2000 Readiness Disclosure made on or after January 1, 1998, through December 31, 2001.

Sec. 7. Prior Written Disclosures.

Written disclosures regarding Year 2000 readiness made prior to the effective date of this Act and after January 1, 1998, that would otherwise satisfy the requirements of subsection 3(l), may be denominated a Year 2000 Readiness Disclosure if so denominated by a notification disseminated in an equivalent manner of said prior disclosure within 90 days of the enactment of the Act.