1 MINA'BENTE SITE NA LIHESLATURAN GUAHAN 2005 (FIRST) REGULAR SESSION Introduced by: Co on Calendar By r&uest of I Maga 'la hen Guhhan in accordance with the Organic Act of Guam. AN ACT TO ESTABLISH THE OFFICE OF HOMELAND SECURITY AND THE HOMELAND SECURITY ADVISORY COUNCIL, TO PROVIDE FOR THE TRANSFER OF RESPONSIBILITIES, MAINTENANCE AND TRANSFER OF FUNDS AND ASSETS TO THE DEPARTMENT OF HOMELAND SECURITY, AND TO CITE THE ACT AS "THE HOMELAND SECURITY ACT OF 2005." 1 BE IT ENACTED BY THE PEOPLE OF GUAM: 2 Section 1. Homeland Security. Division 9, Chapter 93 is hereby added 3 to Title 5 of the Guam Code Annotated to read as follows: 4 "CHAPTER DEPARTMENT OF HOMELAND SECURITY. 6 Article 1. 7 General Provisions. 8 Section Short Title. 9 Section Statement of Intent. 10 Section Establishment of the Department Homeland 11 Security; Mission.
2 Section Section Section Section Section Section Section Director Functions. Other Officers. Coordination with non-federal Entities. Issuance of Regulations. Utilization of Governmental Agencies and Instrumentalities. Rules and Regulations. Chapter to be Liberally Construed. Section Section Article 2. Definitions. Definitions. Construction Severability. Section Article 3. Information. Access to Information. Article 4. Bureaus of the Department of Homeland Security. Section Bureaus of the Department. Section Bureau of Emergency Management. Section Bureau of Customs and Border Enforcement. Section Procurement of Legal Services
3 Section Internal Structure. Section Effective Dates and transition period. Section References. Section Conflicting Provisions. Section Repealer Section Severability. Section Short Title. This Act may be cited as the "Homela nd Security Act of 2005". Section Statement of Intent. The mission of the Department of Homeland Security is to develop and coordinate the implementation of a comprehensive domestic strategy to secure the island from terrorist threats or attacks. It will also incorporate the missions of the Office of Civil Defense and the Department of Customs and Quarantine. The United States has recently prepared a national blueprint for securing itself from the threat of terrorism. This was accomplished with the publication of the National Strategy for Homeland Security. In line with the U.S. National Strategy, Guam must proactively follow suit by establishng its domestic strategy as well. The Governor, by promulgating Executive Order , has directed the Homeland Security Advisor to establish the Department of Homeland Security and develop the Domestic Strategy for Homeland Security. Homeland Security is a challenge of monumental scale and complexity. Achieving Guam's homeland security objectives will require hard work and a sustained investment of money and time. The strategy will be focused on protecting Guam's residents and its fragile economy, seaport and airport, infrastructure, critical facilities, communication systems, border security, and
4 information infrastructure protection. Guam's Domestic Strategy for Homeland Security, is based on the principle of partnership with Federal, State and Regional governments, the private sector, and its citizens. Section Establishment of the Department Homeland Security; Mission. (a) Establishment. There is established a Department of Homeland Security (hereinafter referred to as the "DHS" or "the Department") a department within the Executive Branch of the government of Guam. (b) Mission. (1 General. The Department's primary mission shall include: and; (A) prevent terrorist attacks within the island of Guam (B) terrorism; reduce the vulnerability of the island of Guam to (C) minimize the damage, and assist in the recovery, from terrorist attacks that do occur withn Guam; (D) carry out all functions of entities transferred to the Department, including acting as a focal point regarding natural and manmade crises and emergency planning; (E) ensure that the overall economic security of Guam is not diminished by efforts, activities, and programs aimed at securing the homeland; and (F) monitor connections between illegal drug trafficking and terrorism, coordinate efforts to sever such connections, and otherwise contribute to efforts to interdict illegal drug trafficking.
5 (2) Responsibility for Investigating and Prosecuting Terrorism. Except as specifically provided by law with respect to entities transferred to the Department under this Act, primary responsibility for investigating and prosecuting acts of terrorism shall be vested not in the Department, but rather in Federal and local law enforcement agencies with jurisdiction over the acts in question. Section Director Functions. (a) Department Head. The Director of Homeland Security (hereinafter referred to as "the Director") is the head of the Department of Homeland Security. The Director shall be appointed by I Maga 'lahen Guhhan with the advice and consent of I Liheslaturan Guhhan. All functions of all officers, employees, and organizational units of the Department are vested in the Director. (b) Functions and Delegation Authority. Except as otherwise provided by this Act, the Director may delegate any of the Director functions to other Administrators of the Department. The Director shall have the authority to enter into contracts, grants, and cooperative agreements, and to enter into agreements with other executive agencies, as may be necessary and proper to carry out the Director's other responsibilities under this Act or otherwise provided by law. The Director shall take reasonable steps to ensure that information systems and databases of the Department are compatible with each other and with appropriate databases of other Departments. Section Other Officers. (a) Administrator. There are the following two (2) officers, appointed by appointed by I Maga'lahen Guiihan to head the respective
6 Division withn the Department and shall have direction, authority, and control over it: (I) Administrator for Emergency Management; and (2) Administrator for Customs and Border Division Heads. The Administrators shall be the heads of the respective Bureaus within the Department and shall have direction, authority, and control over it. (c) Functions vested in the Administrator. All functions of all officers, employees, and organizational units under the Department are vested in the Administrators. following: The Administrators shall be responsible for the (I) carry out any and all directions and guidance provided by the Director with regards to homeland security; protecting Guam's residents and its economy, seaport and airport, infrastructure, critical facilities, communication and information systems, border security, and infrastructure protection; (2) act, represent, andlor carry out, as directed by the Governor directly or through the Director, on all matters relating to the accomplishment of identified goals and objectives; (3) create and foster strategic communications with the private sector to enhance the primary mission of the Department to protect the island of Guam; (4) advise the Director on the impact of the Department's policies, regulations, processes, and actions on the private sector;
7 (5) interface with other relevant Military and Federal agencies with homeland security missions to assess the impact of these agencies' actions on the private sector; and (6) work with local and Federal laboratories, federally funded research and development centers, other federally funded organizations, academia, and the private sector to develop innovative approaches to address homeland security challenges to produce and deploy the best available technologies for homeland security missions; (7) promote existing public-private partnerships and developing new public-private partnerships to provide for collaboration and mutual support to address homeland security challenges; and (8) assist in the development and promotion of private sector best practices to secure critical infrastructure. (d) Performance of Specific Functions. Subject to the provisions of this Act, every officer of the Department shall perform the functions specified by law for the official's office or prescribed by the Director. Section Coordination with non-federal Entities. With respect to homeland security, the Director shall coordinate through the Bureau of Emergency Management and Bureau of Customs and Border Enforcement (including the provision for training and equipment) with Military, Federal, State and local government personnel, agencies, and authorities, with the private sector, and with other entities, including: (a) coordinate with Military, Federal, State and local government personnel, agencies, and authorities, and with the private
8 sector, to ensure adequate planning, equipment, training, and exercise activities; (b) coordinate and, as appropriate, interface, the Federal Government's communications and systems of communications relating to homeland security with local government personnel, agencies, and authorities, the private sector, other entities, and the public; and (c) distribute or, as appropriate, coordinate the distribution of, warnings and information to local government personnel, agencies, and authorities and to the public. Section Issuance of Regulations. The issuance of regulations by the Director through the Governor of Guam shall be governed by the provisions of Section 1422 of the Organic Act of Guam. Section Utilization of Governmental Agencies and Instrumentalities. The services and facilities of agencies and instrumentalities of the Federal Government and of the government of Guam, to the extent allowed by law, shall be made available to the Department in the exercise of its functions. Section Rules and Regulations. (a) The Department shall review and revise existing standard operating procedures and create rules and regulations for the Department regarding the hnctions and operations of the Department, according to the provisions of the Administrative Adjudication Law. (b) Fiduciary Duties. The Director shall establish the fiduciary duties that are appropriate and necessary for each of the various Bureaus.
9 (c) Amendments. Any subsequent changes and additions in the rules and regulations for the Department shall be made in accordance with provisions of the Administrative Adjudication Law. Section Chapter to be Liberally Construed. This Chapter shall be construed liberally so far as may be necessary to effect its general intent. Article 2. Definitions. Section Definitions. For purposes of this Chapter, the following words and phrases are defined to mean: (a) The term "homeland" means the island of Guam. (b) The term "appropriate legislative committee" means any committee of the Guam Legislature having legislative or oversight jurisdiction under the Rules of the Legislature, respectively, over the matter concerned. (c) The term "assets" includes contracts, facilities, property, records, unencumbered or unexpended balances of appropriations, and other funds or resources (including personnel). (d) The term "Department" means the Department of Homeland Security. (e) The term "emergency response providers " includes all relevant Federal, State, and local emergency public safety, law enforcement, emergency response, emergency medical (including
10 hospital emergency facilities), and related personnel, agencies, and authorities on Guam. (d) The term "executive agency" means an executive branch department or agency or instrumentality, a public corporation andlor an independent establishment. (e) The term 'Ifunctions" includes authorities, powers, rights, privileges, immunities, programs, projects, activities, duties, and responsibilities. (f) The term "key resources" means publicly or privately controlled resources essential to the minimal operations of the economy and government. (g) The term "local government" means: (I) the government of Guam, local public authority, regional or interstate government entity, or agency or instrumentality of a local government; (2) a rural community, village, or other public entity. (h) The term "major disaster" has the meaning given to any and all types of emergencies where federal resources are needed to supplement depleted or unavailable local resources. (i) The term "Director" means the Director of the Department of Homeland Security. 0) The term "State" means any State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa, the Commonwealth of the Northern Mariana Islands, and any possession of the United States.
11 (k) The term "terrorism" means any activity that: (I) involves an act that: (A) is dangerous to human life or potentially destructive of critical infrastructure or key resources; and (B) is a violation of the criminal laws of the United States and the island of Guam; and (2) appears to be intended: (A) to intimidate or coerce a civilian population; (B) to influence the policy of a government by intimidation or coercion; or (C) to affect the conduct of a government by mass destruction, assassination, or kidnapping. (1) The term "Guam", when used in a geographic sense, shall mean the island of Guam, any of its possessions, and any waters within the jurisdiction of the United States and Guam as defined in Title 1 of the Guam Code Annotated. Section Construction Severability. Any provision of this Act held to be invalid or unenforceable by its terms, or as applied to any person or circumstance, shall be construed so as to give it the maximum effect permitted by law, unless such holding shall be one of utter invalidity or unenforceability, in which event such provision shall be deemed severable from this Act and shall not affect the remainder thereof, or the application of such provision to other persons not similarly situated or to other, dissimilar circumstances.
12 Article 3. Information. Section Access to Information. (a) Threat and Vulnerability Information. Except as otherwise directed by the Governor, the Director shall have such access as the Director considers necessary to all information, including reports, assessments, analyses, and unevaluated intelligence relating to threats of terrorism against Guam and to other areas of responsibility assigned by the Director, and to all information concerning infrastructure or other vulnerabilities of Guam to terrorism, whether or not such information has been analyzed, that may be collected, possessed, or prepared by any agency of the government of Guam. (b) Other Information. The Director shall also have access to other information relating to matters under the responsibility of the Director that may be collected, possessed, or prepared by an agency of the Government of Guam as the Governor may further provide. (c) Manner of Access. Except as otherwise directed by the Governor, with respect to information to which the Director has access pursuant to this Section: (1) the Director may obtain such material upon request, and may enter into cooperative arrangements with other executive agencies to provide such material or provide Department officials with access to it on a regular or routine basis, including requests or arrangements involving broad categories of material, access to electronic databases, or both; and (2) regardless of whether the Director has made any request or entered into any cooperative arrangement pursuant to paragraph (I), all
13 government of Guam departments and agencies shall promptly provide to the Director: (A) all reports (including information reports containing intelligence which has not been fully evaluated), assessments, and analytical information relating to threats of terrorism against the United States and to other areas of responsibility assigned by the Secretary; (B) all information concerning the vulnerability of the infrastructure of the United States, or other vulnerabilities of the United States, to terrorism, whether or not such information has been analyzed; (C) all other information relating to significant and credible threats of terrorism against the United States, whether or not such information has been analyzed; and (D) such other information or material as the Governor may direct. (d) Treatment under Certain laws. The Director shall be deemed privy, if permissible, to any law enforcement, intelligence, protective, national and domestic security and defense, immigration, or national security official, and shall be provided with any and all information from law enforcement agencies in order to carry out his duties under any provision of the following national regulations: 56). (1) The USA PATRIOT Act of 2001 (U.S. Public Law 107- (2) Section (6) of Title 1 8, United States Code.
14 (3) Rule 6(e)(3)(C) of the Federal Rules of Criminal Procedure. (e) Access to Intelligence and Other Information. (1) Access by elements of Federal Government. Nothing in this title shall preclude any element of the intelligence community (as that term is defined in Section 3(4) of the National Security Act of 1947 (50 U.S.C. 401a(4)), or any other element of the Federal Government with responsibility for analyzing terrorist threat information, from receiving any intelligence or other information relating to terrorism. (2) Sharing of Information. The Director, in consultation with the Secretary of the U.S. Department of Homeland Security, shall work to ensure that intelligence or other information relating to terrorism to which the Department has access is appropriately shared with the elements of the Federal Government referred to in Paragraph (e)(l), as well as with State and local governments, as appropriate. (f) Exemption from Freedom of Information. All information received by the Department shall not be subject to the requirements of Article 1, Chapter 10, of Title 5 of the Guam Code Annotated. Article 4. Bureaus of the Department of Homeland Security. Section Bureaus of the Department. Section Bureau of Emergency Management. Section Bureau of Border Security. Section Bureau of Plant Protection and Quarantine. Section Procurement of Legal Services. Section Internal Structure.
15 Section Effective Dates and transition period. Section References. Section Conflicting Provisions. Section Repealer Section Severabiltiy. Section Bureaus of the Department. There are created divisions within the Department of Homeland Security known as the Bureau of Emergency Management and Bureau of Customs and Border Enforcement with functions, powers and responsibilities as provided in this Chapter. Section Bureau of Emergency Management. (a) Transfer of Responsibilities of the Office of Civil Defense and the Recovery Coordinating Office to the Department of Homeland Security. Except as provided in this Chapter, all programs, mandates, responsibilities and duties of the Office of Civil Defense and the Recovery Coordinating Office, as detailed in Chapter 65, Division 3 of Title 10, Guam Code Annotated, and Executive Order Nos and , or in any other laws of Guam, are transferred to the Department of Homeland Security, such duties, programs, mandates and responsibilities to be assumed by the Bureau of the Department designated as the Bureau of Emergency Management. (b) Maintenance of effort of Federally-funded programs. The Department of Homeland Security shall undertake and ensure full continuance, operation and maintenance of effort for such programs currently established under the purview of the Office of Civil Defense and the Recovery Coordinating Office for which Federal funding or support has been attained,
16 and shall meet all reporting or other requirements pursuant to such assistance or funding. (c) Transfer of funds and assets. The balance of all funds appropriated to the Office of Civil Defense and the Recovery Coordinating Office, and all balances held in revolving funds, and all funds available to the Office of Civil Defense and the Recovery Coordinating Office shall be transferred to the Department of Homeland Security. All real property under the management of the Office of Civil Defense and the Recovery Coordinating Office shall be transferred to the management of the Department of Homeland Security. All supplies, equipment and all material assets of the Office of Civil Defense and the Recovery Coordinating Office shall be transferred to the Bureau of Emergency Management of the Department of Homeland Security. Section Bureau of Border Security. (a) Transfer of Responsibilities of the Customs and Quarantine Agency to the Department of Homeland Security. Except as provided on this Act, all programs, mandates, responsibilities and duties of the Customs and Quarantine Agency, as detailed in 5 G.C.A , Chapter 73, Divisions 7, Title 5, Guam Code Annotated, or in any other laws of Guam, are transferred to the Department of Homeland Security, such duties, programs, mandates and responsibilities to be assumed by the Bureau of the Department designated as the Bureau of Customs and Border Enforcement. (b) Maintenance of effort of Federally-funded programs. The Department of Homeland Security shall undertake and ensure full continuance, operation and maintenance of effort for such programs currently established under the purview of the Department of Customs and Quarantine
17 Agency for which Federal funding or support has been attained, and shall meet all reporting or other requirements pursuant to such assistance or funding. (c) Transfer of funds and assets. The balance of all funds appropriated to the Customs and Quarantine Agency, and all balances held in revolving funds, and all funds available to the Customs and Quarantine Agency shall be transferred to the Department of Homeland Security. All real property under the management of the Customs and Quarantine Agency shall be transferred to the management of the Department of Homeland Security. All supplies, equipment and all material assets of the Customs and Quarantine Agency shall be transferred to the Bureau of Customs and Border Enforcement of the Department of Homeland Security. Section Procurement of Legal Services. The Department may employ its own legal counsel, either on a full-time basis, or may employ on retainer an attorney in private practice in Guam. An attorney employed by the Department, and who is not in private practice, may be treated as an attorney of the government for purposes of admission to the practice of law in Guam. Section Internal Structure. The Director of Homeland Security shall organize and arrange the work of the Department of Homeland Security, and may establish such programs or offices as are necessary within the Divisions of the Department of Homeland Security established in Section of this Chapter. Section Effective Dates and transition period. This Act shall take effect one hundred and twenty (120) days after enactment into law. During this transition period, the directors of such
18 departments or agencies affected by this Act shall undertake such activity as is necessary to effect the smooth transfer of employees, assets and funding pursuant to the provisions of this Chapter. Section References. Upon the effective date of this Act, all references in the laws of Guam and the rules and regulations of the government of Guam to the Office of Civil Defense, the Recovery Coordinating Office, and the Customs and Quarantine Agency, and all references to the directors of each, shall be construed as referring to the Department of Homeland Security and Director of Homeland Security respectively. Section Provisions as Continuation of Prior Law. (a) The provisions of this Chapter, insofar as they are substantially the same as existing statutory provisions relating to the same subject matter, shall be construed as continuations thereof and not as new enactments. (b) All persons who, at the time this Chapter goes into effect hold office under any of the laws repealed by this Chapter, continue to hold the same according to the former tenure thereof. (c) All rules and regulations promulgated under existing statutory provisions and authority, which are not inconsistent with the provisions of this Division, shall continue in full force and effect as if they had been promulgated under the provisions of this Chapter. Section Conflicting Provisions. Wherever the application of the provisions of other laws conflict with the application of the provisions of this Act, this Act shall prevail, provided that in any
19 situation where the provisions of this Act cannot be validly enforced, the provisions of such other laws shall apply. Section Except as provided in this Act, nothing herein shall be construed as amending or repealing any provision, section or part of the Guam Code Annotated. Section Severability. If any provision of this Act or its application to any person or circumstance is found to be invalid or contrary to law, such invalidity shall not affect other provisions or applications of this Act which can be given effect without the invalid provisions or applications, and to this end the provisions of this Act are severable."
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