Ley 132 del 2001

(No. 132)

(Approved September 17, 2001)

AN ACT

To establish an "Act on the Quality of Cement for Use in Puerto Rico."

STATEMENT OF MOTIVES

Governments have the responsibility to watch over the safety of all its citizens by taking such measures as are needed to achieve this purpose. This is part of the "Powers of Regulation" inherent to every government, which empowers it to regulate all that is contrary to or threatens the welfare, safety, morality and freedom of a community.

Cement is a basic element for the socio-economic development of Puerto Rico. It is the main and primary construction material in our Island. It is used for the construction of dwellings, commercial buildings, factories, warehouses, highways, business centers, schools, study centers and leisure and recreational areas, among many others. It is indispensable that quality controls be clearly established for the safety, lives and property of our citizens, and that the pertinent information regarding this product is offered to consumers.

In 1990, in compliance with its responsibility, the Portland Cement Quality Regulations, manufactured and imported for use in Puerto Rico, was promulgated by the Department of Consumer Affairs (DACO, Spanish acronym). These Regulations were necessary since most of the constructions on the Island are in concrete and cement is the most important component in

---

the manufacturing of this product. Any variation in the quality of cement significantly affects the quality of concrete. This, in turn, affects the safety of the people who may be in a structure built with concrete of inferior quality.

The Regulations were in effect for a decade and served their purpose, however, at the end of 1999, DACO filed a Bill to repeal it. The grounds for said repeal were the fact that the Regulations and Permits Administration had adopted a new Building Code, and that it included the provisions of the regulations enforced by DACO. It also indicated that during the ten years that the Regulations had been in effect complaints had only been filed by local manufacturers and importers and none by private citizens. Lastly, it mentioned that there were federal and state laws to regulate the use of construction materials in government works, thus it was understood that to keep the Regulations in effect would constitute a "duplication of regulations that compromises supervisory resources unnecessarily ... and that the repealing thereof would not constitute a hazard to the welfare and safety of the people of Puerto Rico."

The new regulations, however, did not provide for the establishment of a quality control system to verify the quality of the cement before it was used. This is extremely important since once the work is completed, it is practically impossible to replace low quality cement. On the other hand, these regulations do not require any type of bond or insurance to compensate the damages that could occur as a result of the use of low quality cement in construction works. Members of the construction industry have stated that on several occasions cement that does not meet all the criteria established in the ASTM C-150 standard has been sold in Puerto Rico, for example, cement that exceeds the "ignition loss" limit or that contains an alkaline

---

percentage higher than that of the cement produced in Puerto Rico. This could cause cracks and even the disintegration of the cement, if adequate measures are not taken during its preparation.

The legislative intent in acting in this area is clear: the safety of our citizens and the protection of consumers. It is undeniable that government agencies, through legislative delegation, have the right to regulate areas of our daily lives that are under their jurisdiction; areas that even the Legislature could not have foreseen, and that result in an impact on the quality of life of the citizens, which in turn requires legislative action to ensure their permanency.

This Legislature deems that the safety of our people is extremely important and that there should be some minimum standards to guarantee the quality of the cement that is used in construction works in Puerto Rico. For such reason, the following legislation is promulgated.

BE IT ENACTED BY THE LEGISLATURE OF PUERTO RICO:

Section 1.- Short Title This Act shall be known as an "Act on the Quality of Cement for Use in Puerto Rico."

Section 2.- Definitions The following terms as used in this Act shall have the meaning stated hereinbelow: a. ASTM - shall mean the "American Society for Testing and Materials," a scientific and technical organization established in the United States to promulgate the development of standards in the characteristics and performance of materials, products, systems and services, together with the promotion of related knowledge.

---

b. Cement - refers to all hydraulic cement that is plastered and hardened through a chemical interaction with water and that has the capacity of the same reaction under water, as specified by U.B.C. c. Department - shall mean the Department of Consumer Affairs. d. Distribution - shall mean the economic activity that entails the wholesale and retail sale of cement. e. Importer - shall mean every person who introduces to Puerto Rico any type of cement manufactured abroad. f. Manufacturer - shall mean every person who produces any type of cement in Puerto Rico. g. NIST - shall mean the National Institute of Standards and Technology. h. Person - shall mean every natural and juridical person and its representatives, agents, officers, mediators or subsidiaries of any of the above and their legal successors. i. Secretary - shall mean the Secretary of the Department of Consumer Affairs. j. U.B.C. - Uniform Building Code; 1997 edition, or any subsequent edition as adopted by the Regulations and Permits Administration (ARPE). k. Board - shall mean the Environmental Quality Board.

1. NACLA - shall mean the national Cooperation for Laboratory Accreditation.

Section 3.- Scope and Application This Act shall apply to every person who is engaged in the manufacturing and importing of any type of cement in Puerto Rico. Only

---

the manufacturing and importing of cement whose use is allowed by the UBC shall be allowed in Puerto Rico.

Section 4.- Declaration of Public Policy a. Safety, life and property are among the highest priorities of the State. b. Cement is the principal construction material in our Island, which makes it a basic element for the socio-economic development of Puerto Rico. c. The quality of cement used in Puerto Rico requires compliance with the minimum acceptable construction standards, as established in federal or state laws, regulations or codes adopted by the Commonwealth of Puerto Rico, as well as the adequate supervision to ensure said compliance.

Section 5.- Quality Requirements All cement manufactured or imported into Puerto Rico shall comply with the mandatory and optional quality standards corresponding to the type of cement in question, according to Volume 04-01 of Section 4 of the ASTM Standards Manual, in its most recent annual review. Furthermore, it shall comply with the specifications required in the Uniform Building Code, adopted by the Regulations and Permits Administration (1997 Uniform Building Code of the International Conference of Building Officials, as amended). It shall be the responsibility of every wholesale manufacturer and importer to conduct the physical and chemical analysis needed to establish that the cement complies with the provisions of this Section. Said analyses shall be performed in a laboratory inspected by NIST or accredited by any of those who signed the Mutual Recognition Agreement (MRA) of NACLA. The distribution and use in Puerto Rico of any cement that does

---

not comply with the quality requirements set forth in this Section is hereby prohibited. Manufacturers and importers are hereby prohibited to mix different types of cement as well as to mix cement from different manufacturers.

Section 6.- Manufacturers and Importers Registration Requirements Every wholesale manufacturer and importer shall be registered in the Department. This registration does not exempt them from the registration required by any other agency or instrumentality of the Government of Puerto Rico for compliance with any other law or regulations. On or before January 31 of each year, each one of them shall file a sworn statement which shall consign the following information: a. Name, address, telephone and fax number, e-mail of the natural or juridical person who is the applicant, if any, as well as that of its president and directors, and the name and address of the resident agent, if a corporation or that of its partners in the case of a partnership. b. Information on the other firms participating in the capital of the applicant, identifying the same with the same information required in subsection

(a) of this Section. c. Commercial relationship of the applicant with financial entities, distributors, main office, affiliates or subsidiaries or with firms that usually use cement, and the identification thereof, as required in subsection

(a) of this Section. d. The sworn statement shall enclose a check or money order payable to the Secretary of the Treasury for the sum of one thousand (1,000) dollars for the original registration fee, and of five hundred (500) dollars for its annual renewal. In the case of

---

a corporation or partnership, it shall also include a copy of the Certificate of Incorporation or of the Constitution Charter, as the case may be, only in the original registration. e. A bond with a minimum coverage of (1,000,000) dollars per person and (2,000,000) dollars per event to guarantee compensation to third parties for any damage caused by deficiencies in the quality of cement within the term provided by the Civil Code of Puerto Rico. This bond or insurance may also respond to any administrative or judicial imposition caused by noncompliance with this Act, if the infractor fails to do so within a term of thirty (30) days after the decision becomes final and binding. Every bond required in this Section shall be obtained from an insurance company certified by the Insurance Commissioner of Puerto Rico to do business in Puerto Rico. f. Any change in the information previously furnished shall be notified in writing to the Department within (10) ten days following the date of the event. g. Any cancellation, alteration or material change in the policy or bond indicated in subsection

(d) of this Section shall be notified to the Department thirty (30) days prior to the same for the approval of the Secretary.

Section 7.- Requirements for Importers and Manufacturers of Cement Every person who imports or manufactures cement in Puerto Rico shall meet the following requirements: a. Every thirty (30) days, the manufacturers shall file the results of the physical or chemical analyses performed to the cement

---

within said period. These results shall be reported directly to the Department with a copy to the manufacturer. b. The samples of the analyses mentioned in the preceding subsection shall be taken as established in the ATSM Standards Manual in its Section C-183. c. Every importer or manufacturer shall inform the Department, in writing or through electronic means accepted by it, the arrival of all shipments of any type of cement in Puerto Rico at least five (5) working days prior to the arrival of the shipment. Upon its arrival, an officer of the Department may appear at the dock and take samples of the cement from each drum of cement, according to the provisions of the ATSM Standards Manual of the in its specification C-183, in the volume needed for the total number of samples required by this Section. This notice shall be made to the Environmental Quality Board in order for it to verify whether the cargo complies with the Atmospheric Pollution Control Regulations, as amended. The Board shall be present in at least fifty (50) percent of the shipments based on the total number of shipments of the year preceding the current year. d. Said samples shall be divided into six (6) parts, three of which shall be retained by the importer to perform the corresponding analyses or tests. The fourth part shall be remitted by the Department to an independent laboratory and the fifth and sixth part shall be retained by the Department, in the case it should be necessary to perform additional analysis. The results of these

---

analyses shall be delivered directly to the Department, with a copy to the importer. e. Every person who manufactures or imports cement of any type into Puerto Rico shall file a Certificate of Compliance at the Office of the Deputy Secretary of Supervision of the Department to evidence the cement quality requirements in accordance to the physical and chemical analyses established in Section 5 of this Act. The laboratory that conducts said analyses to determine compliance shall be duly inspected by the NIST or accredited by any of the signers of the Mutual Recognition Agreement (MRA) of NACLA.

The Certificate of Compliance of the importers shall be filed within a term of fifteen (15) days counting from the receipt of every shipment, with the exception of that of compression to be filed within twenty-eight (28) days, which result shall be filed within thirty (30) days following the receipt of the shipment. This document shall certify that the cement meets the requirements established in Section 4 of this Act. The Certificate of Compliance of cement manufacturers shall be filed every 30 days indicating the results of the chemical and physical analyses performed on the cement during said period. f. Any analysis that shows noncompliance with the quality requirements herein established shall be repeated once using the methods in Section 10 of specification C-183 of the ASTM Standards Manual in effect, on noncompliance and repetition of tests. In that case, the only results that shall be used are those obtained in the arbitration method. The retesting shall consist

---

of the same number of determinations required for the initial analysis. When two or more determinations are required, the value reported shall be the average of all the results that are within the precision limits of the method, with 95% reliability, as recommended in the specifications, or generally accepted. g. The importer manufacturer, as the case may be, shall pay the costs of the abovementioned physical or chemical analyses.

Section 8.- Inspections by the Department The Department may carry out inspections of the cement manufactured in Puerto Rico without previous notice. To such ends, a Department official shall appear at the manufacturing plants and take samples, as established in the ASTM Standards Manual, specification C-138. These samples shall be divided into 6 parts, and the procedure to be followed shall be that established in subsection

(d) of Section 7 of this Act, with the exception that the results shall be delivered to the manufacturing company whose cement was analyzed. When dealing with imported cement, every importer shall inform the Department of the arrival of every shipment of any type of cement to the Commonwealth of Puerto Rico at least five (5) working days prior to the arrival thereof. It shall be divided into six parts. Three parts of the sample shall be withheld by the importer to perform the corresponding analyses or tests, the fourth part shall be sent by the Department to an independent laboratory, and the fifth and sixth parts shall be withheld by the Department in the case it should be necessary to perform additional analyses.

The Department may also take samples from any sack of cement of each brand that is sold in hardware stores or any other type of business where cement is sold in sacks. At least once every six (6) months, in

---

January and July of each year, the Department shall publish in two (2) newspapers of general circulation a certificate of compliance with the standards of the tests performed on the cement of every brand that is sold in the local market. This publication may be included in the publications required in subsection

(c) of Section 9 of this Act.

Section 9.- Information Requirements Every person who manufactures or imports any type of cement shall: a. Print the following information in English and in Spanish on every sack of cement.

1. The type of cement contained in the sack and that the cement meets the quality requirements established in the ASTM Standards Manual specifications for the type of cement contained.
2. The name and address of the factory in which said cement is produced and, in the case of imported cement, the name of the importer and his/her domicile.
3. The information required by Regulation PM-6 of the Department of January 15, 1970, entitled "Regulations to Establish the Form to Label Pre-packed Packages and other Products of Use and Consumption" or any other labeling regulation that is applicable.
4. In the case of cement manufactured outside of the United States of America or Puerto Rico, a notice stating that in accordance with the federal laws (41 U.S.C. sec 10a et. Seq.) and the laws of Puerto Rico (Act Number 109 of July 12, 1985) the cement shall not be used in construction works of the Governments of the United

---

States and of Puerto Rico nor in works financed with funds from said governments except in the specific cases established in said laws. b. Not distribute or sell in Puerto Rico any sack of cement that is not labeled in accordance with the provisions of this Section, nor fill any sack with cement proceeding from more than one manufacturer. c. Prepare and print for its publication in two newspapers of general circulation in Puerto Rico, every six (6) months, literature for each type of cement that is manufactured or imported, containing information on:

(i) Characteristics and properties of the cement. (ii) Storage suggestions. (iii) Necessary warnings to prevent acid-alkaline reactions when using the cement.

Section 10.- Regulations The Secretary is hereby empowered to regulate all matters necessary to ensure compliance with this Act.

Section 11.- Penalties Any violation to the provisions of this Act or the regulations, orders or resolutions issued thereunder shall be sanctioned with a fine of not less than ten thousand (10,000) dollars nor more than thirty (30,000) dollars per incident.

Section 12.- Appropriation of Funds The sum of one hundred and fifty thousand (150,000) dollars is hereby appropriated in the budget of the Department of Consumer Affairs for the 2001-2002 fiscal year and recurrently, for the recruitment of inspectors.

---

Section 13.- Severance Clause If any part, section, paragraph, subsection or clause of this Act were to be declared null by any court with competent jurisdiction, the judgment rendered to such effect shall not affect or invalidate the remainder thereof, and shall be limited to the part, section, paragraph, subsection or clause that has been declared null.

Section 14.- Effectiveness This Act shall take effect sixty (60) days after its approval.

---

CERTIFICATION

I hereby certify to the Secretary of State that the following Act No. 132 (H.B. 857) of the $2^{ ext {nd }}$ Session of the $14^{ ext {th }}$ Legislature of Puerto Rico:

AN ACT to establish an "Act on the Quality of Cement for Use in Puerto Rico.", has been translated from Spanish to English and that the English version is correct.

In San Juan, Puerto Rico, today $23^{ ext {rd }}$ of June of 2004.

Elba Rosa Rodríguez-Fuentes Director