Tuesday, September 12, 2017

Senate Amendments to HR 2810 (FY 2018 NDAA) – 9-11-17

Yesterday the Senate voted to close debate on the motion to close further debate on the motion to proceed to consideration of HR 2810, the FY 2018 National Defense Authorization Act (NDAA) by a vote of 89 to 3.This is the first step in the process to begin consideration of HR 2810. In addition to the previously proposed amendments (see here and here) a large number of possible amendments to HR 2180 were proposed in the Senate yesterday; including five that may be of specific interest to readers of this blog:

• SA 856. Mr. BROWN - Collaboration between federal aviation administration and department of defense on unmanned aircraft systems (pg S5118);
• SA 867. Ms. WARREN - Report on significant security risks of defense critical electric infrastructure (pgs S5121-2);
• SA 868. Mr. VAN HOLLEN - Strengthening allied cybersecurity (pgs S5122-3);
• SA 919. Mr. MCCAIN - Report on training infrastructure for cyber forces (pg S5146);
• SA 922. Mr. MCCAIN - Unmanned aircraft systems that pose a threat to the safety or security of certain department of defense facilities and assets (pg S5147)

Electric Infrastructure Security Risks

Yesterday’s amendment by Sen. Warren (D,MA) is nearly identical to the one she proposed last week (SA 794). The only change that I could see is that her staff added a definition of ‘security risk’:

“The term ‘‘security risk’’ shall have such meaning as the Secretary of Defense shall determine, in coordination with the Director of National Intelligence and the Secretary of Energy….”

Not much of a definition, but it does lay the onus for coming up with a useful definition with the people technically qualified to make the assessment.


SA 922 takes an interesting approach to the problem of shooting down unmanned aircraft systems (UAS) in United States airspace. Currently, damaging or shooting down an aircraft in US airspace is a criminal act under 18 USC 32 and there is no exemption in that section for actions by military personnel. This amendment would tangentially approach that problem for UAS by allowing the military to ‘seize’ UAS irrespective of the restrictions in 18 USC. Interestingly, there is no indication in the amendment on how DOD would be expected to seize those UAS or in what condition they would be when seized.

That authority would only be available at some very limited ‘covered facilities or assets’. Those would be defined as facilities relating to:

• The nuclear deterrence mission of the Department of Defense, including with respect to nuclear command and control, integrated tactical warning and attack assessment, and continuity of government;
• The missile defense mission of the Department; or
• The national security space mission of the Department.

Moving Forward

Yesterday’s vote is a pretty good indication that the Senate leadership has worked out an agreement on how to proceed with the consideration of HR 2810. There are still some procedural measures where that consideration could be derailed by a sizeable minority of the Senators, but at this point it looks like a much-amended HR 2810 will eventually get a floor vote in the Senate, maybe even this month.

When it eventually passes it will almost certainly be referred to a conference committee to work out the differences between the House and Senate versions of the bill. Still, we are likely to see a final version of the bill on the President’s desk well before the December deadline on other measures clogs up the legislative process.

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