A bill to authorize pilot programs on the remote provision by the National Guard to State governments and National Guards in other States of cybersecurity technical assistance in training, preparation, and response to cyber incidents, and for other purposes.

II 116TH CONGRESS 2D SESSION S. 3929 To authorize pilot programs on the remote provision by the National Guard to State governments and National Guards in other States of cybersecu- rity technical assistance in training, preparation, and response to cyber incidents, and for other purposes. IN THE SENATE OF THE UNITED STATES JUNE 10, 2020 Mr. PETERS introduced the following bill; which was read twice and referred to the Committee on Armed Services A BILL To authorize pilot programs on the remote provision by the National Guard to State governments and National Guards in other States of cybersecurity technical assist- ance in training, preparation, and response to cyber inci- dents, and for other purposes. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 VerDate Sep 11 2014 04:01 Jun 25, 2020 Jkt 099200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S3929.IS S3929 kjohnson on DSK79L0C42PROD with BILLS 2 •S 3929 IS SECTION 1. PILOT PROGRAMS ON REMOTE PROVISION BY 1 NATIONAL GUARD TO STATE GOVERNMENTS 2 AND NATIONAL GUARDS IN OTHER STATES 3 OF CYBERSECURITY TECHNICAL ASSISTANCE 4 IN TRAINING, PREPARATION, AND RESPONSE 5 TO CYBER INCIDENTS. 6 (a) PILOT PROGRAMS AUTHORIZED.— 7 (1) IN GENERAL.—The Secretary of the Army 8 and the Secretary of the Air Force may each con- 9 duct a pilot program to assess the feasibility and ad- 10 visability of the development of a capability within 11 the National Guard through which a National Guard 12 of a State remotely provides State governments and 13 the National Guard of other States (whether or not 14 in the same Armed Force as the providing National 15 Guard) with cybersecurity technical assistance in 16 training, preparation, and response to cyber inci- 17 dents. 18 (2) CONSTRUCTION IN DISCHARGE.—If such 19 Secretary elects to conduct such a pilot program, 20 such Secretary shall be known as an ‘‘administering 21 Secretary’’ for purposes of this section, and any ref- 22 erence in this section to ‘‘the pilot program’’ shall be 23 treated as a reference to the pilot program con- 24 ducted by such Secretary. 25 VerDate Sep 11 2014 04:01 Jun 25, 2020 Jkt 099200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S3929.IS S3929 kjohnson on DSK79L0C42PROD with BILLS 3 •S 3929 IS (3) COORDINATION AND CONSULTATION.—Ex- 1 cept as otherwise provided in this section, if such 2 Secretary elects to conduct such a pilot program, 3 such Secretary shall conduct all components of the 4 assessment in subsection (b) and all components of 5 the pilot program and reports in subsection (i) joint- 6 ly with the Secretary of Homeland Security and in 7 consultation with the Chief of the National Guard 8 Bureau and entities representing State governments 9 (such as Governors and chief information officers). 10 (b) ASSESSMENT PRIOR TO COMMENCEMENT.—For 11 purposes of evaluating existing platforms, technologies, 12 and capabilities under subsection (c), and for establishing 13 eligibility and participation requirements under subsection 14 (d), for purposes of the pilot program, an administering 15 Secretary shall, prior to commencing the pilot program— 16 (1) conduct an assessment of— 17 (A) existing cyber capabilities available to 18 States; 19 (B) existing cyber response capacities of 20 the Army National Guard or Air National 21 Guard, as applicable, in each State; 22 (C) any existing platform, technology, or 23 capability of a National Guard that provides the 24 capability described in subsection (a); and 25 VerDate Sep 11 2014 04:01 Jun 25, 2020 Jkt 099200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S3929.IS S3929 kjohnson on DSK79L0C42PROD with BILLS 4 •S 3929 IS (D) any other available existing platform, 1 technology, or capabilities that may provide the 2 capability described in subsection (a); and 3 (2) determine whether a platform, technology, 4 or capability described in paragraph (1)(C) or 5 (1)(D) is suitable for expansion for purposes of the 6 pilot program. 7 (c) ELEMENTS.—A pilot program under subsection 8 (a) shall include the following: 9 (1) A technical capability that enables the Na- 10 tional Guard of a State to remotely provide cyberse- 11 curity technical assistance to State governments and 12 the National Guard of other States, without the 13 need to deploy outside its home State. The design 14 and any development of such capability shall— 15 (A) occur in consultation with the Sec- 16 retary of Homeland Security; and 17 (B) enable, upon deployment and operation 18 of the capability, interoperability with other 19 Federal and non-Federal cyber response enti- 20 ties, including the Department of Homeland Se- 21 curity. 22 (2) Policies, processes, procedures, and authori- 23 ties for use of such a capability, including with re- 24 spect to the following: 25 VerDate Sep 11 2014 04:01 Jun 25, 2020 Jkt 099200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S3929.IS S3929 kjohnson on DSK79L0C42PROD with BILLS 5 •S 3929 IS (A) The roles, responsibilities, and authori- 1 ties of both requesting and deploying State gov- 2 ernments, National Guards, and the Depart- 3 ment of Homeland Security with respect to 4 such remote technical assistance, taking into 5 account the matters specified in subsection (f). 6 (B) Program management and governance 7 structures for deployment and maintenance of 8 the capability. 9 (C) Security when performing remote sup- 10 port, including such in matters such as authen- 11 tication and remote sensing. 12 (D) The efficient and effective use by Fed- 13 eral and non-Federal entities of the interoper- 14 ability functionality of the capability, as re- 15 quired by paragraph (1)(B). 16 (3) The conduct, in consultation also with the 17 Director of the Federal Bureau of Investigation, 18 other Federal agencies, and appropriate non-Federal 19 entities (in addition to the entities referred to in 20 subsection (a)(3)), of at least one exercise to dem- 21 onstrate the capability, which exercise shall include 22 the following: 23 (A) Participation of not fewer than two 24 State governments and their National Guards. 25 VerDate Sep 11 2014 04:01 Jun 25, 2020 Jkt 099200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S3929.IS S3929 kjohnson on DSK79L0C42PROD with BILLS 6 •S 3929 IS (B) Circumstances designed to test and 1 validate the policies, processes, procedures, and 2 authorities developed pursuant to paragraph (2) 3 and the interoperability functionality of the ca- 4 pability, as required pursuant to paragraph 5 (1)(B). 6 (d) USE OF EXISTING TECHNOLOGY.—An admin- 7 istering Secretary may use an existing platform, tech- 8 nology, or capability to provide the capability described in 9 subsection (a) under the pilot program. 10 (e) ELIGIBILITY AND PARTICIPATION REQUIRE- 11 MENTS.—An administering Secretary shall establish re- 12 quirements with respect to eligibility and participation of 13 State governments and their National Guards in the pilot 14 program. 15 (f) CONSTRUCTION WITH CERTAIN CURRENT AU- 16 THORITIES.— 17 (1) COMMAND AUTHORITIES.—Nothing in a 18 pilot program under subsection (a) may be construed 19 as affecting or altering the command authorities 20 otherwise applicable to any unit of the National 21 Guard unit participating in the pilot program. 22 (2) EMERGENCY MANAGEMENT ASSISTANCE 23 COMPACT.—Nothing in a pilot program may be con- 24 strued as affecting or altering any current agree- 25 VerDate Sep 11 2014 04:01 Jun 25, 2020 Jkt 099200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S3929.IS S3929 kjohnson on DSK79L0C42PROD with BILLS 7 •S 3929 IS ment under the Emergency Management Assistance 1 Compact, or any other State agreements, or as de- 2 terminative of the future content of any such agree- 3 ment. 4 (g) EVALUATION METRICS.—An administering Sec- 5 retary shall establish metrics to evaluate the effectiveness 6 of the pilot program. 7 (h) TERM.—A pilot program under subsection (a) 8 shall terminate on the date that is three years after the 9 date of the commencement of the pilot program. 10 (i) REPORTS.— 11 (1) INITIAL REPORT.—Not later than 180 days 12 after the date of the commencement of the pilot pro- 13 gram, the administering Secretary, in coordination 14 solely with the Secretary of Homeland Security, 15 shall submit to the appropriate committees of Con- 16 gress a report setting forth a description of the pilot 17 program and such other matters in connection with 18 the pilot program as the administering Secretary 19 considers appropriate. 20 (2) FINAL REPORT.—Not later than 180 days 21 after the termination of the pilot program, the ad- 22 ministering Secretary, in coordination solely with the 23 Secretary of Homeland Security, shall submit to the 24 VerDate Sep 11 2014 04:01 Jun 25, 2020 Jkt 099200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S3929.IS S3929 kjohnson on DSK79L0C42PROD with BILLS 8 •S 3929 IS appropriate committees of Congress a report on the 1 pilot program. The report shall include the following: 2 (A) A description of the pilot program, in- 3 cluding any partnerships entered into by the 4 administering Secretary under the pilot pro- 5 gram. 6 (B) A summary of the assessment per- 7 formed prior to the commencement of the pilot 8 program in accordance with subsection (b). 9 (C) A summary of the evaluation metrics 10 established in accordance with subsection (g). 11 (D) An assessment of the effectiveness of 12 the pilot program, and of the capability de- 13 scribed in subsection (a) under the pilot pro- 14 gram. 15 (E) An assessment of any obstacles, either 16 in statute or policies of the Department of De- 17 fense or the Department of Homeland Security, 18 that impacted the effectiveness of the capability 19 described in subsection (a) under the pilot pro- 20 gram. 21 (F) A description of costs associated with 22 the implementation and conduct of the pilot 23 program. 24 VerDate Sep 11 2014 04:01 Jun 25, 2020 Jkt 099200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S3929.IS S3929 kjohnson on DSK79L0C42PROD with BILLS 9 •S 3929 IS (G) A recommendation as to the termi- 1 nation or extension of the pilot program, or the 2 making of the pilot program permanent with an 3 expansion nationwide. 4 (H) An estimate of the costs of making the 5 pilot program permanent and expanding it na- 6 tionwide in accordance with the recommenda- 7 tion in subparagraph (G). 8 (I) Appropriate proposals for updates to 9 national cyber response plans. 10 (J) Such recommendations for legislative 11 or administrative action as the administering 12 Secretary considers appropriate in light of the 13 pilot program. 14 (3) JOINT EXERCISE AFTER ACTION REPORT.— 15 Not later than 90 days after completion of the exer- 16 cise described in subsection (c)(3), the administering 17 Secretary, in coordination solely with the Secretary 18 of Homeland Security and in consultation solely with 19 the Chief of the National Guard Bureau, shall sub- 20 mit to the appropriate committees of Congress a 21 joint Department of Defense and Department of 22 Homeland Security after-action report on the exer- 23 cise. The report shall include the following: 24 VerDate Sep 11 2014 04:01 Jun 25, 2020 Jkt 099200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S3929.IS S3929 kjohnson on DSK79L0C42PROD with BILLS 10 •S 3929 IS (A) A description of the exercise scenario 1 and participating entities. 2 (B) A discussion of the effectiveness of the 3 exercise in evaluating the capability described in 4 subsection (a), including the policies, processes, 5 procedures, and authorities developed pursuant 6 to subsection (c)(2) and the interoperability 7 functionality of the capability, as required pur- 8 suant to subsection (c)(1)(B). 9 (C) A discussion of the effectiveness of the 10 exercise in evaluating coordination between the 11 National Guards and the Department of Home- 12 land Security during incident response. 13 (D) A discussion of strengths and weak- 14 nesses of interdepartment communication, co- 15 ordination, and joint support to the State gov- 16 ernment or National Guard unit requesting as- 17 sistance during the exercise. 18 (E) Such recommendations for legislative 19 or administrative action as the administering 20 Secretary or the Secretary of Homeland Secu- 21 rity considers appropriate in light of the exer- 22 cise. 23 VerDate Sep 11 2014 04:01 Jun 25, 2020 Jkt 099200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S3929.IS S3929 kjohnson on DSK79L0C42PROD with BILLS 11 •S 3929 IS (4) APPROPRIATE COMMITTEES OF CONGRESS 1 DEFINED.—In this subsection, the term ‘‘appro- 2 priate committees of Congress’’ means— 3 (A) the Committee on Armed Services and 4 the Committee on Homeland Security and Gov- 5 ernmental Affairs of the Senate; and 6 (B) the Committee on Armed Services and 7 the Committee on Homeland Security of the 8 House of Representatives. 9 (j) STATE DEFINED.—In this section, the term 10 ‘‘State’’ means each of the several States, the District of 11 Columbia, the Commonwealth of Puerto Rico, American 12 Samoa, Guam, the United States Virgin Islands, and the 13 Commonwealth of the Northern Mariana Islands. 14 (k) FUNDING.— 15 (1) AUTHORIZATION OF APPROPRIATIONS.— 16 There is hereby authorized to be appropriated for 17 fiscal year 2021 for the Department of Defense for 18 operation and maintenance, Defense-wide activities, 19 $6,000,000, with the amount to be available for ad- 20 ministrative and service-wide activities for the Office 21 of the Secretary of Defense for the pilot programs 22 authorized by subsection (a). 23 (2) CONSTRUCTION WITH OTHER FUNDING.— 24 The amount authorized to be appropriated and 25 VerDate Sep 11 2014 04:01 Jun 25, 2020 Jkt 099200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S3929.IS S3929 kjohnson on DSK79L0C42PROD with BILLS 12 •S 3929 IS available pursuant to paragraph (1) is in additional 1 to any other amounts authorized to be appropriated 2 for fiscal year 2021 for the Department of Defense. 3 (l) TRANSFER OF FUNDS AUTHORIZED.—The Sec- 4 retary of Defense may transfer amounts available pursu- 5 ant to subsection (k)(1) to the Department of Homeland 6 Security for credit to appropriations available for the Cy- 7 bersecurity and Infrastructure Security Agency of the De- 8 partment of Homeland Security. Amounts so transferred 9 shall be merged with and available for the same time pe- 10 riod as the appropriation to which transferred, and shall 11 be available to carry out this section. 12 Æ VerDate Sep 11 2014 04:01 Jun 25, 2020 Jkt 099200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6301 E:\BILLS\S3929.IS S3929 kjohnson on DSK79L0C42PROD with BILLS