Page:United States Statutes at Large Volume 113 Part 1.djvu/214

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113 STAT. 190 PUBLIC LAW 106-37-JULY 20, 1999 for the integrity of the national securities markets, including the protection of depositors and investors; (III) noncompliance with applicable federally enforceable measurement, monitoring, or reporting requirements to the extent caused by operational error or negligence; (IV) lack of reasonable preventative maintenance; (V) lack of preparedness for a Y2K failure; or (VI) noncompliance with the underlying federally enforceable requirements to which the • applicable federally enforceable measurement, monitoring, or reporting requirement relates. (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 reasonable good faith effort to anticipate, prevent, and effectively remediate a potentigJ Y2K failiu-e; (B) a Y2K upset occurred as a result of a Y2K failure or other emergency directly related to a Y2K failure; (C) noncompliance with the applicable federally enforceable measurement, monitoring, or reporting requirement was unavoidable in the face of an emergency directly related to a Y2K fgulure and was necesseiry to prevent the disruption of critical functions or services that could result in harm to life or property; (D) upon identification of noncompligince the defendant invoking the defense began immediate actions to correct any violation of federally enforceable measurement, monitoring, or reporting reqmrements; and (E) the defendant submitted notice to the appropriate Federal regulatory authority of a Y2K upset within 72 hours from the time that the defendant 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 the imposition of a penalty in any action brought as a result of noncompliance with federally enforceable measurement, monitoring, or reporting requirements for any defendant who establishes by a preponderance of the evidence that the conditions set forth in paragraph (3) Eire 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 specific relief by the appropriate regulatory authority is granted. (6) FRAUDULENT INVOCATION OF Y2K UPSET DEFENSE.— Fraudulent use of the Y2K upset defense provided for in this subsection shall be subject to the s£inctions 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.