Title: Cyber Response and Recovery Act of 2021
Policy area: Government Operations and Politics

Summary:
Cyber Response and Recovery Act of 2021
This bill authorizes the Department of Homeland Security (DHS) to declare a significant incident in the event of a breach of a public or private network and establishes a Cyber Response and Recovery Fund.
Specifically, DHS may make the declaration upon determining that a specific significant incident has occurred or is likely to occur imminently and that otherwise available resources, other than the fund, are likely insufficient to respond to or mitigate the incident effectively.
Upon a declaration, the Cybersecurity and Infrastructure Security Agency must coordinate (1) the response activities of each federal agency; and (2) with other responding entities, including local governments and law enforcement agencies.
The fund shall be available for the coordination of such activities and for response and recovery support.

[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[S. 1316 Introduced in Senate (IS)]

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117th CONGRESS
  1st Session
                                S. 1316

 To amend the Homeland Security Act of 2002 to authorize the Secretary 
 of Homeland Security to make a declaration of a significant incident, 
                        and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             April 22, 2021

Mr. Peters (for himself and Mr. Portman) introduced the following bill; 
which was read twice and referred to the Committee on Homeland Security 
                        and Governmental Affairs

_______________________________________________________________________

                                 A BILL


 
 To amend the Homeland Security Act of 2002 to authorize the Secretary 
 of Homeland Security to make a declaration of a significant incident, 
                        and for other purposes.

    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 ``Cyber Response and Recovery Act of 
2021''.

SEC. 2. DECLARATION OF A SIGNIFICANT INCIDENT.

    (a) In General.--Title XXII of the Homeland Security Act of 2002 (6 
U.S.C. 651 et seq.) is amended by adding at the end the following:

          ``Subtitle C--Declaration of a Significant Incident

``SEC. 2231. DEFINITIONS.

    ``For the purposes of this subtitle:
            ``(1) Asset response activity.--The term `asset response 
        activity' means an activity to support an entity impacted by an 
        incident with the response to, remediation of, or recovery 
        from, the incident, including--
                    ``(A) furnishing technical and advisory assistance 
                to the entity to protect the assets of the entity, 
                mitigate vulnerabilities, and reduce the related 
                impacts;
                    ``(B) assessing potential risks to the critical 
                infrastructure sector or geographic region impacted by 
                the incident, including potential cascading effects of 
                the incident on other critical infrastructure sectors 
                or geographic regions;
                    ``(C) developing courses of action to mitigate the 
                risks assessed under subparagraph (B);
                    ``(D) facilitating information sharing and 
                operational coordination with entities performing 
                threat response activities; and
                    ``(E) providing guidance on how best to use Federal 
                resources and capabilities in a timely, effective 
                manner to speed recovery from the incident.
            ``(2) Declaration.--The term `declaration' means a 
        declaration of the Secretary under section 2232(a)(1).
            ``(3) Director.--The term `Director' means the Director of 
        the Cybersecurity and Infrastructure Security Agency.
            ``(4) Federal agency.--The term `Federal agency' has the 
        meaning given the term `agency' in section 3502 of title 44, 
        United States Code.
            ``(5) Fund.--The term `Fund' means the Cyber Response and 
        Recovery Fund established under section 2233(a).
            ``(6) Incident.--The term `incident' has the meaning given 
        the term in section 3552 of title 44, United States Code.
            ``(7) Renewal.--The term `renewal' means a renewal of a 
        declaration under section 2232(d).
            ``(8) Significant incident.--The term `significant 
        incident'--
                    ``(A) means an incident or a group of related 
                incidents that results, or is likely to result, in 
                demonstrable harm to--
                            ``(i) the national security interests, 
                        foreign relations, or economy of the United 
                        States; or
                            ``(ii) the public confidence, civil 
                        liberties, or public health and safety of the 
                        people of the United States; and
                    ``(B) does not include an incident or a portion of 
                a group of related incidents that occurs on--
                            ``(i) a national security system (as 
                        defined in section 3552 of title 44, United 
                        States Code); or
                            ``(ii) an information system described in 
                        paragraph (2) or (3) of section 3553(e) of 
                        title 44, United States Code.

``SEC. 2232. DECLARATION.

    ``(a) In General.--
            ``(1) Declaration.--The Secretary, in consultation with the 
        National Cyber Director, may make a declaration of a 
        significant incident in accordance with this section if the 
        Secretary determines that--
                    ``(A) a specific significant incident--
                            ``(i) has occurred; or
                            ``(ii) is likely to occur imminently; and
                    ``(B) otherwise available resources, other than the 
                Fund, are likely insufficient to respond effectively 
                to, or to mitigate effectively, the specific 
                significant incident described in subparagraph (A).
            ``(2) Prohibition on delegation.--The Secretary may not 
        delegate the authority provided to the Secretary under 
        paragraph (1).
    ``(b) Asset Response Activities.--Upon a declaration, the Director 
shall coordinate--
            ``(1) the asset response activities of each Federal agency 
        in response to the specific significant incident associated 
        with the declaration; and
            ``(2) with appropriate entities, which may include--
                    ``(A) public and private entities and State and 
                local governments with respect to the asset response 
                activities of those entities and governments; and
                    ``(B) Federal, State, local, and Tribal law 
                enforcement agencies with respect to investigations and 
                threat response activities of those law enforcement 
                agencies.
    ``(c) Duration.--Subject to subsection (d), a declaration shall 
terminate upon the earlier of--
            ``(1) a determination by the Secretary that the declaration 
        is no longer necessary; or
            ``(2) the expiration of the 120-day period beginning on the 
        date on which the Secretary makes the declaration.
    ``(d) Renewal.--The Secretary, without delegation, may renew a 
declaration as necessary.
    ``(e) Publication.--Not later than 72 hours after a declaration or 
a renewal, the Secretary shall publish the declaration or renewal in 
the Federal Register.
    ``(f) Advance Actions.--The Secretary--
            ``(1) shall assess the resources available to respond to a 
        potential declaration; and
            ``(2) may take actions before and while a declaration is in 
        effect to arrange or procure additional resources for asset 
        response activities or technical assistance the Secretary 
        determines necessary, which may include entering into standby 
        contracts with private entities for cybersecurity services or 
        incident responders in the event of a declaration.

``SEC. 2233. CYBER RESPONSE AND RECOVERY FUND.

    ``(a) In General.--There is established a Cyber Response and 
Recovery Fund, which shall be available for--
            ``(1) the coordination of activities described in section 
        2232(b);
            ``(2) response and recovery support for the specific 
        significant incident associated with a declaration to Federal, 
        State, local, and Tribal, entities and public and private 
        entities on a reimbursable or non-reimbursable basis, including 
        through asset response activities and technical assistance, 
        such as--
                    ``(A) vulnerability assessments and mitigation;
                    ``(B) technical incident mitigation;
                    ``(C) malware analysis;
                    ``(D) analytic support;
                    ``(E) threat detection and hunting; and
                    ``(F) network protections;
            ``(3) as the Director determines appropriate, grants for, 
        or cooperative agreements with, Federal, State, local, and 
        Tribal public and private entities to respond to, and recover 
        from, the specific significant incident associated with a 
        declaration, such as--
                    ``(A) hardware or software to replace, update, 
                improve, harden, or enhance the functionality of 
                existing hardware, software, or systems; and
                    ``(B) technical contract personnel support; and
            ``(4) advance actions taken by the Secretary under section 
        2232(f)(2).
    ``(b) Deposits.--Money shall be deposited into the Fund from--
            ``(1) appropriations to the Fund for activities of the 
        Fund;
            ``(2) reimbursement from Federal agencies for the 
        activities described in paragraphs (1), (2), and (4) of 
        subsection (a); and
            ``(3) any other income incident to activities of the Fund.
    ``(c) Supplement Not Supplant.--Amounts in the Fund shall be used 
to supplement, not supplant, other Federal, State, local, or Tribal 
funding for activities in response to a declaration.

``SEC. 2234. NOTIFICATION AND REPORTING.

    ``(a) Notification.--Upon a declaration or renewal, the Secretary 
shall immediately notify the National Cyber Director and appropriate 
congressional committees and include in the notification--
            ``(1) an estimation of the planned duration of the 
        declaration;
            ``(2) with respect to a notification of a declaration, the 
        reason for the declaration, including information relating to 
        the specific significant incident or imminent specific 
        significant incident, including--
                    ``(A) the operational or mission impact or 
                anticipated impact of the specific significant incident 
                on Federal and non-Federal entities;
                    ``(B) if known, the perpetrator of the specific 
                significant incident; and
                    ``(C) the scope of the Federal and non-Federal 
                entities impacted or anticipated to be impacted by the 
                specific significant incident;
            ``(3) with respect to a notification of a renewal, the 
        reason for the renewal;
            ``(4) justification as to why available resources, other 
        than the Fund, are insufficient to respond to or mitigate the 
        specific significant incident; and
            ``(5) a description of the coordination activities 
        described in section 2232(b) that the Secretary anticipates the 
        Director to perform.
    ``(b) Report to Congress.--Not later than 180 days after the date 
of a declaration or renewal, the Secretary shall submit to the 
appropriate congressional committees a report that includes--
            ``(1) the reason for the declaration or renewal, including 
        information and intelligence relating to the specific 
        significant incident that led to the declaration or renewal;
            ``(2) the use of any funds from the Fund for the purpose of 
        responding to the incidents or threat described in paragraph 
        (1);
            ``(3) a description of the actions, initiatives, and 
        projects undertaken by the Department and State and local 
        governments and public and private entities in responding to 
        and recovering from the specific significant incident described 
        in paragraph (1);
            ``(4) an accounting of the specific obligations and outlays 
        of the Fund; and
            ``(5) an analysis of--
                    ``(A) the impact of the specific significant 
                incident described in paragraph (1) on Federal and non-
                Federal entities;
                    ``(B) the impact of the declaration or renewal on 
                the response to, and recovery from, the specific 
                significant incident described in paragraph (1); and
                    ``(C) the impact of the funds made available from 
                the Fund as a result of the declaration or renewal on 
                the recovery from, and response to, the specific 
                significant incident described in paragraph (1).
    ``(c) Classification.--Each notification made under subsection (a) 
and each report submitted under subsection (b)--
            ``(1) shall be in an unclassified form; and
            ``(2) may include a classified annex.
    ``(d) Consolidated Report.--The Secretary shall not be required to 
submit multiple reports under subsection (b) for multiple declarations 
or renewals if the Secretary determines that the declarations or 
renewals substantively relate to the same specific significant 
incident.
    ``(e) Exemption.--The requirements of subchapter I of chapter 35 of 
title 44 (commonly known as the `Paperwork Reduction Act') shall not 
apply to the voluntary collection of information by the Department 
during an investigation of, a response to, or an immediate post-
response review of, the specific significant incident leading to a 
declaration or renewal.

``SEC. 2235. RULE OF CONSTRUCTION.

    ``Nothing in this subtitle shall be construed to impair or limit 
the ability of the Director to carry out the authorized activities of 
the Cybersecurity and Infrastructure Security Agency.

``SEC. 2236. AUTHORIZATION OF APPROPRIATIONS.

    ``There are authorized to be appropriated to the Fund $20,000,000 
for fiscal year 2022, which shall remain available to be expended until 
September 30, 2028.

``SEC. 2237. SUNSET.

    ``The authorities granted to the Secretary or the Director under 
this subtitle shall expire on the date that is 7 years after the date 
of enactment of the Cyber Response and Recovery Act of 2021.''.
    (b) Clerical Amendment.--The table of contents in section 1(b) of 
the Homeland Security Act of 2002 (Public Law 107-296; 116 Stat. 2135) 
is amended by adding at the end the following:

          ``Subtitle C--Declaration of a Significant Incident

``Sec. 2231. Definitions.
``Sec. 2232. Declaration.
``Sec. 2233. Cyber response and recovery fund.
``Sec. 2234. Notification and reporting.
``Sec. 2235. Rule of construction.
``Sec. 2236. Authorization of appropriations.
``Sec. 2237. Sunset.''.
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