Camara de Mercadeo, Industria y Distribucion de Alimentos et al v. Vazquez et al

Filing 186

OPINION AND ORDER. Defendants are hereby enjoined from collecting enhanced security fees from shipping operators that are not being scanned pursuant to Regulation No. 8067. Signed by US Magistrate Judge Bruce J. McGiverin on October 16, 2013.(McGiverin, Bruce)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
CÁMARA DE MERCADEO, INDUSTRIA,
Y DISTRIBUCIÓN DE ALIMENTOS, et
al.,
Plaintiffs,
v.

Civil No. 11-1978 (BJM)

BERNARDO VÁZQUEZ, in his official
capacity as director of the Puerto Rico Ports
Authority, et al.,
Defendants.
OPINION AND ORDER
Thirty-two organizations and businesses related to Puerto Rico’s shipping
industry sued the heads of the Puerto Rico Ports Authority (“PRPA”) and the Puerto Rico
Treasury Department, in their official capacities, seeking injunctive relief from a
regulation creating an x-ray scanning procedure and charging a fee at the Port of San
Juan. Docket No. 1 (“Compl.”). The parties consented to proceed before a magistrate
judge. Docket No. 120. A consolidated hearing on the merits of this case was held on
June 25 through June 27, 2013. Docket Nos. 169, 170, 172.
The court heard testimony from twelve witnesses, and admitted eleven exhibits.
Joint exhibits were also admitted. Docket No. 181. A transcript was prepared. Docket
Nos. 173 (“Day 1 Tr.”), 174 (“Day 2 Tr.”), 175 (“Day 3 Tr.”). The parties filed post-trial
briefs. See Docket Nos. 176 (“Pl. Br.”), 177 (“PRPA Br.”), and 178 (“Treasury Br.”). In
light of the findings of fact and legal discussion set forth below, plaintiffs’ request for
declaratory relief is DENIED and injunctive relief is GRANTED IN PART.
BACKGROUND
The findings below are based the credible testimony of the witnesses heard and
the documentary evidence received at trial.

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Existing Fees and Services at Port of San Juan
There are approximately ten ports of entry into Puerto Rico. The Port of San Juan
is by far the largest, handling approximately 80% of all cargo that enters Puerto Rico.
The Puerto Rico Ports Authority owns and manages the Port of San Juan, which receives
both containerized cargo and bulk (non-containerized) cargo, such as vehicles, fuel or
molasses. Two other sizeable ports—Mayagüez and Ponce—do not belong to PRPA.
For purposes of this litigation, shipping operators handling cargo in the Port of
San Juan are subject to the following fees:





Rent – for the operator’s exclusive use of certain yards and warehouses in the Port
of San Juan;
Dockage fee – for the vessel to dock along an assigned pier, calculated by gross
tonnage of the vessel;
Port Service fee (harbor dues) – for the vessel’s entrance to the Bay of San Juan,
calculated by gross tonnage of the vessel;
Wharfage (facility surcharge) – for cargo to be unloaded and pass through the
Port, calculated based on cargo weight.
According to Hernán Francisco Ayala Rubio (“Ayala”), President of the Puerto

Rico Shipping Association (“PRSA”), who participated in the most recent port fees
negotiation with PRPA, the port service fee goes towards maintaining the harbor,
including the cost of dredging navigational channels and areas in the harbor that the
Army Corps of Engineers does not dredge. The dockage fee, Ayala testified, goes
towards maintaining the physical facilities where the vessels dock, such as, the pier,
apron, pilings, breakwater, and the general immediate area where ships dock.
Prior to establishing the cargo scanning procedure (and still currently for a
number of shipping operators), the Treasury Department would periodically select
inbound cargo containers at random and conduct physical inspections of the containers
prior to their release from the terminal.
According to Ayala, the majority of shipping operators in the Port of San Juan
have their own facility security plans, as required by the U.S. Coast Guard. The security
plans are carried out with funds from the federal government and the respective

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companies. Ayala also stated that PRPA installed cameras in the port areas five or six
years ago with federal grant money.
Advent of PRPA’s Cargo Scanning Regulation
Following the terrorist attacks of September 11, 2001, the International Maritime
Organization created the International Ship and Port Facility Security Code. Congress
followed suit in 2002 with the Maritime Transportation Security Act (“MTSA”), 46
U.S.C. §§ 70101 et seq., and the 2006 Security and Accountability for Every Port Act
(“SAFE Port Act”), 6 U.S.C. §§ 901 et seq. Compl. 16, ¶ 1. In 2007, the Governor of
Puerto Rico and several agency heads executed a memorandum of understanding
regarding, among other issues, port security. Id., ¶ 2. The Commonwealth legislature
enacted Law No. 12 of February 18, 2008, 23 L.P.R.A. §§ 3221 et seq., also addressing
port security. Id., ¶ 3.
In August 2009, PRPA published a request for proposals for “a complete turn-key
solution for 100% inbound cargo scanning at the Port of San Juan.” Exh. VII at 1.
Rapiscan Systems, Inc. (“Rapiscan”) subsequently submitted a proposal, which was
selected by PRPA in October 2009. PRPA and Rapiscan entered into a contract on
December 17, 2009, whereby Rapiscan would be the exclusive provider of inbound cargo
scanning services in the Port of San Juan. Id. at 2. In August of 2010, Rapiscan
transferred its rights and obligations under the contract to S2 Services Puerto Rico, LLC,
a fully owned subsidiary of Rapiscan. Exh. VIII.
In late 2010, PRPA circulated an initial draft of a cargo scanning regulation.
Compl. 16, ¶ 9. During the first half of 2011, public hearings on the regulation were
held; based on those discussions, the regulation underwent several rounds of drafting.
The final regulation, Regulation No. 8067, was promulgated in September 2011. Exh. IV
(“Reg.”). The final regulation specifies that scanning procedures extend to both interstate
and foreign cargo, i.e. 100% of inbound cargo in the Port of San Juan. Reg., art. I, ¶ G.
The regulation does not address cargo scanning at other ports in Puerto Rico.

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The regulation contains the following statement of purpose:
This Regulation aims to regulate and govern the procedures at the new
inspection facilities to be established by the Puerto Rico Ports Authority in
its maritime port facilities at the Port of San Juan. The measure seeks to
accommodate the interest of the Department of the Treasury to inspect up
to 100% of all Inbound Cargo Containers, in order to identify unreported
taxable goods, by a non-intrusive scanning (imaging) system that
preserves a free and efficient flow of commercial traffic at the ports. It
also seeks to establish the means necessary to improve security and safety
at the port facilities, and/or to otherwise advance (or more efficiently
advance) the public policy of the Commonwealth of Puerto Rico . . . .
Reg., art. II. The regulation provides that PRPA personnel may “reduce the percentage of
[i]nbound [c]argo [c]ontainers to be scanned, to the percentage that the Authority deems
necessary,” in the event of an “undue delay and waiting period.” Reg., art. IV, ¶ C.
Earlier that year, in February 2011, PRPA and the Treasury Department executed a
memorandum of understanding, whereby the Treasury Department agreed to staff each
scanning station with at least one Treasury Department employee, who would be
responsible for interpreting the container images provided by S2 Services and for
determining whether the container should be detained for further inspection. Exh. I at 4.
As part of the agreement, PRPA would “reimburse to the Treasury Department all of its
costs and expenses related to the Treasury Department’s employees . . . that work at the
[scanning stations].” Id. at 5.
As of June 2013, the scanning procedure had been implemented at three shipping
operator terminals—Crowley, Horizon Lines, and Sea Star Lines.
The Enhanced Security Fee
As part of Regulation No. 8067 (effective October 11, 2011), all vessels carrying
cargo that arrive and unload in the Port of San Juan are required to pay to PRPA an
“Enhanced Security Fee” (“ESF”). Reg., art. IV, ¶ J. The ESF was established to
“recover . . . all costs incurred by the Authority in providing, repairing and maintaining
an efficient scanning system, . . . as well as providing better security and safety measures
and/or related facilities at the Port of San Juan.” Id.

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The fee is calculated as follows:
Cargo in Containers
A)
General Cargo
Motor Vehicles
Liquid Cargo handled in Bulk
Liquid Sugar and Molasses
Empty Containers or Chassis

$ 4.00 per ton up to $69 per container (Exhibit
$
$
$
$
$

3.25
4.00
0.039
0.58
4.00

per ton
per ton
per 42 gallon barrel
per ton
per unit

Reg., art. IV, ¶ K.
ESF rates were determined according to analyses prepared by PRPA’s Office of
Tariffs Affairs and Economic Studies. Alfredo Martínez Cintrón (“Martínez”), who
heads that office, testified that he conducted the research and analysis that led to the ESF.
The rates, he said, were calculated by forecasting the cost of enhancing security at the
cargo docks and the amount of cargo that is expected to come in through the port.
Specific costs included the S2 Services’ contract, depreciation of the scanning areas’
construction cost, the payroll and expenses of Treasury employees who work at the
scanning stations, the loss of rent income from areas devoted to scanning, and security
expenses across various law enforcement agencies. S2 Services’ contract states that it
shall receive $57.00 for each container introduced into the Port of San Juan. Exh. X at 4.
Of the security expenses, Martínez testified that approximately $1.4 million from the ESF
is allocated to the General Security Office, and $300,000 is allocated to the Office of
Maritime Security. Martínez also admitted that these security expenses were previously
covered by another tariff, that the security expenses were transferred to the ESF, and the
original tariff has not been reduced.
Starting in October 2011, shipping companies operating in the Port of San Juan
began receiving ESF invoices from PRPA. As of March 31, 2013, $29,551,507.09 had
been billed in enhanced security fees; $20,412,371.34 had been collected; of that amount,
$17,136,894.00 was paid to Rapiscan or S2 Services. Exh. XI. According to Jorge
Ortega Fuentes, Internal Revenue Supervisor at the Treasury Department, PRPA pays to

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the Treasury Department approximately $1 million annually to cover the payroll and
expenses of the Treasury agents who work at the scanning sites. The three carriers that
have scanning stations at their terminals (Crowley, Horizon, and Sea Star) account for
approximately 63% of ESF fees billed as of March 31, 2013.1 Id.
Impact on Shipping Companies
At trial, representatives from four shipping companies—Island Stevedoring, Inc.;
American President Lines; Luis Ayala Colón Sucres; and Sea Star Lines, LLC—testified
as to their experience with Regulation No. 8067.
Mayra Villalón Meunier (“Villalón”), General Manager and Vice President of
Island Stevedoring, testified on behalf of the company.

Island Stevedoring handles

exclusively bulk cargo (non-containerized) from domestic and foreign locations. All of
its inbound cargo is subject to the ESF; but none of it has been scanned by PRPA. There
are no scanning stations at Island Stevedoring’s terminal in the Port of San Juan. The
company (according to Villalón) has paid over $1 million in enhanced security fees.
Exhs. 1, XI.
Villalón testified that due to the ESF’s structure, bulk cargo carriers such as Island
Stevedoring may end up paying more per ton than container carriers, because container
fees are capped at $69 per container.

She also testified that the ESF creates an

administrative burden, in that they have to generate another invoice for the ESF to each
customer. However, Island Stevedoring has not hired additional staff to address the
added administrative burdens.

The company’s clients are also paying the ESF as

invoiced. Island Stevedoring has in place a security plan approved by the U.S. Coast
Guard and paid for by the company.

1

ESF fees attributed to Maersk Line and Perez y Compañia are included in this
percentage as they are handled through Horizon’s terminal. Day 1 Tr. 93.

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José Ángel Vázquez Colón (“Vázquez”), Treasurer of the PRSA and General
Manager of American President Lines (“APL”) 2 for Puerto Rico and the Dominican
Republic, testified on behalf of those two organizations.

APL handles containers

exclusively, almost all of which come from foreign locations. None of APL’s containers
have been subject to scanning, and there are no scanning stations at APL’s terminal.
Vázquez, however, has observed delays at scanning stations in other terminals when he
visited those sites. Vázquez testified that APL has paid over $480,000 in ESF fees, but
that its customers reimburse APL for the fees and any associated administrative costs.
Hernán Francisco Ayala Rubio, President of PRSA and Vice President of
Operations at Luis Ayala Colon Sucres. (“Luis Ayala”), testified on behalf of the
company. Like APL, almost all of Luis Ayala’s inbound cargo is of foreign origin, and
none of it is scanned by PRPA. However, because the cargo is international, it is subject
to inspection by U.S. Customs and Border Patrol (“CBP”). According to Ayala, as soon
as international containers are unloaded from the vessel, they are immediately scanned by
the CBP through an X-ray scanning process similar to PRPA’s. The containers are then
stored in Luis Ayala’s terminal or released to the customer. Ayala stated that the company
has paid approximately $1.5 million to PRPA in enhanced security fees, most of which,
including administrative costs, are passed on to its customers. Ayala also stated that
Treasury agents continue to conduct random physical inspections of containerized cargo
at Luis Ayala’s terminal, as previously conducted prior to the passage of Regulation No.
8067. Luis Ayala, like other shipping operators, has its own security plan, which is paid
for by federal grant dollars and the company’s own funds.
Iván Burgos Cruz (“Burgos”), Terminal Manager of Sea Star Lines, testified on
behalf of the company. Sea Star transports both containerized cargo and bulk cargo into
the Port of San Juan. Sea Star has one scanning station at its terminal. According to
2

APL is not a named party to this case.

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Burgos, Sea Star began to pay the ESF in October 2011, and the scanning process started
around March 2012. Burgos testified that most of its clients are paying the ESF, except
for one client that refuses to pay the fee.
Scanning Procedure
Only three shipping operators’ terminals are currently equipped with PRPA
scanning facilities—Crowley, Horizon Lines, and Sea Star Lines. Exh. 2. All other
terminals do not have scanning stations. Crowley and Sea Star each have one scanning
station at their terminals. Horizon has three scanning stations. The scanning process
currently applies only to containerized cargo.

Bulk cargo is not scanned, even in

terminals with scanning stations.
At the three terminals with PRPA scanning facilities, containerized cargo is
scanned immediately prior to its departure from the terminal. Before then, the container
may sit for days or weeks in the terminal’s warehouse or yard without inspection. When
a particular container is ready to be released from the terminal, the container is placed on
a truck and moves to the terminal’s dispatch area. There, a terminal operator confirms
that the container is subject to release with appropriate paperwork, and the container
moves into the scanning area. The truck is instructed to move through the scanner at the
speed of five to seven miles per hour. The scanner produces an image, which is reviewed
inside a trailer that is staffed by two S2 Services technicians and one Treasury agent. The
Treasury agents staffed at these stations have been trained by S2 services to interpret and
analyze the scanner images. See, e.g., Exhs. A, B, E.
The Treasury agent at this time compares the contents of the container, as shown
in the image, with the container’s manifest or bill of lading (provided by the shipper), and
determines whether the container’s contents are accurately reported on the manifest. If
inconsistencies exist between the scanned image and the manifest, the container may be
detained for further inspection. Alby Rosa Martínez (“Rosa”), a Treasury agent who has
been working at the scanning stations since the start of the process, stated that the entire

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scanning and analysis process lasts around one to two minutes (or less) if everything is
normal. Steven Edwin Flynn, the plaintiffs’ expert on ports and container cargo safety,
testified to observing the scanning process take around 30-45 seconds per container when
he visited the three terminals in August 2012. Flynn also testified that the scanning
technology used at the Port of San Juan is very similar to that used by the U.S. CBP.
Sea Star has five dispatch lanes and one scanning station. According to Burgos,
trucks from the five dispatch lanes have to merge into one, which creates a lot of
congestion. But when there is congestion at the scanning station, PRPA personnel allow
every third container to bypass the scanning process. Rosa testified that since PRPA has
instituted the bypass procedure, there have been no further complaints regarding delays.
Burgos also testified that at Sea Star, close to 80% of the cargo leaves the terminal on the
same day the vessel arrives. But due to the scanning regulation, Burgos said, Sea Star
cannot release containerized cargo after hours, when scanning station personnel have left
for the day. According to Burgos, Sea Star also cannot provide empty containers to its
customers after hours.

Rosa testified that the Treasury Department works to

accommodate the shipping companies’ time tables when setting scanning stations’ work
hours. For example, scanning stations may be staffed after normal business hours or on
the weekends if a company is scheduled to unload and release cargo at those times.
If the scanner reveals the container holds undisclosed goods that may be subject
to taxation, the container is moved to a holding area where it is marked with a Treasury
seal for further inspection. The seal indicates that the container cannot be opened outside
the presence of a Treasury agent. The owner of the container must then schedule an
inspection of the container with a Treasury agent, which usually occurs within a few
business days. If contraband is discovered through the scanning process, the appropriate
law enforcement authorities (e.g. Puerto Rico Police) are called in to intercept the
container.

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From November 2011 through December 2012, the Treasury Department has
assessed $322,130.84 in taxes owed from unreported merchandise and $31,441 in
administrative penalties. Exhs. 4 at 1; C & D. Edwin Torres Dones, Internal Revenue
agent with Treasury, admitted that some of the administrative penalties may have resulted
from the illegal breaking of a Treasury seal and not directly from the scanning process
itself. Since the start of the scanning process in 2011 through 2013, Treasury has scanned
a total of 313,383 containers. Exh. F. During the three years preceding the scanning
procedure (2008 to 2010), when Treasury manually inspected containers, it inspected a
total of 7,142 containers. Id.
PRPA Security
According to Marcos Ariel Olivo Chávez (“Olivo”), Assistant Manager of
Security, PRPA’s security department is composed of 34 individuals, 22 of whom are
officers assigned to posts in the tourism docks, bulk cargo docks, and container docks.
Another six officers are permanently assigned to the scanning stations. Exh. XIII. PRPA
has 168 security cameras throughout the San Juan Bay. Olivo testified that PRPA has had
a security plan in place since 2002, which is revised every five years.
Olivo stated that since the scanning procedures have been in place, Type I and
Type II crimes have reduced, including vandalism crimes. There are fewer reports of
missing containers, lost merchandise, and vehicle thefts. When the scanning procedure
has detected importation of weapons, they were imported for legal destinations (e.g. the
National Guard).

And eight months ago, two individuals were caught smuggling

knapsacks of drugs at the Horizon terminal.
Olivo also testified that PRPA is still working to refine the scanning process.
They have plans in the short-term (within the next 40 to 45 days) to implement scanning
procedures to cover the shipping operators that currently are not being scanned. A new
scanning site will also be constructed in the Puerto Nuevo dock area as soon as funds for
the construction are identified.

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DISCUSSION
Plaintiffs contend that the scanning regulation and enhanced security fee are
unconstitutional as violating the dormant Commerce Clause.

Plaintiffs also argue that

the enhanced security fee violates the Tonnage Clause of the Constitution. Pl. Br. 22.
Defendants assert that both the scanning regulation and the ESF are constitutional
exercises of the Commonwealth’s police powers.3
I.

Standing
In their post-trial briefs, defendants argue that plaintiffs do not have Article III

standing before this court because they have not suffered injury-in-fact from the
regulation.

Treasury Br. 4.

More specifically, defendants point out that any costs

incurred by the plaintiffs from the ESF are passed on to their customers, Treasury Br. 4–
5, and the scanning procedure has not created a backlog or negatively affected plaintiffs’
operations, PRPA Br. 5.
Article III of the Constitution limits the judicial power of the courts to “cases” and
“controversies.” U.S. Const. art. III, § 2. That constitutional limit is embodied in the
standing requirements of injury-in-fact, causation, and redressability. Sea Shore Corp. v.
Sullivan, 158 F.3d 51, 55 (1st Cir. 1998). An “injury-in-fact” must involve “‘an invasion
of a legally-protected interest which is (a) concrete and particularized; and (b) actual or
imminent, not conjectural or hypothetical.’” Id. (quoting Lujan v. Defenders of Wildlife,
504 U.S. 555, 560 (1992)).
Plaintiffs during trial proceedings established that Island Stevedoring, Luis Ayala,
Sea Star and other shipping operators have paid millions of dollars in enhanced security
fees to PRPA (Exh. 1; Day 1 Tr. 24, 52, 81), which constitutes a direct economic injury.
3

Defendants also ask this court to apply the Import-export Clause inspection exception to
Puerto Rico in this case. Treasury Br. 12. But defendants offer no particularized argument as to
whether the Import-export Clause applies to Puerto Rico and how the scanning regulation and
ESF could fall under the Clause’s inspection exception. Thus, I decline to consider the passing
reference any further. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (courts are not
obligated to develop skeletal arguments).

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Bacchus Imports, Ltd. v. Dias, 468 U.S. 263, 267 (1984) (finding economic injury where
plaintiffs are directly responsible for paying the challenged tax). Defendant’s argument
to the contrary is not persuasive. The Supreme Court, in Bacchus Imports, rejected the
State of Hawaii’s argument that the plaintiffs lack standing because they can and do pass
on the disputed tax to their customers.

Id.

“Even if the tax is completely and

successfully passed on,” the Court noted, “it increases the price of their products as
compared to the [tax-exempt] beverages, and the wholesalers are surely entitled to litigate
whether the discriminatory tax has had an adverse competitive impact on their business.”
Id.

Likewise here, the ESF increases the prices plaintiffs charge their customers,

arguably to their detriment. Thus, some of the plaintiffs have suffered an injury-in-fact
that is directly caused by Regulation No. 8067, and which can be remedied by this court.
Because at least some plaintiffs have standing to seek the requested relief, the court need
not determine the standing of other plaintiffs’ seeking the same relief. Comfort v. Lynn
Sch. Comm., 418 F.3d 1, 11 (1st Cir. 2005), abrogated on other grounds, Parents Involved
in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701 (2007). In short, I find that Article
III standing requirements are satisfied.
II.

Scanning Procedure
Plaintiffs first argue that the scanning procedure violates the dormant Commerce

Clause as an impermissible burden on interstate commerce. Pl. Br. 21. Defendants
counter that the scanning procedure is a valid exercise of Puerto Rico’s police powers and
does not unduly burden interstate commerce. Treasury Br. 12; PRPA Br. 7.
The Constitution provides that “Congress shall have Power . . . [t]o regulate
Commerce . . . among the several States.” U.S. Const. Art. I, § 8, cl. 3. By negative
implication, the Constitution deprives individual states of the power to “impede the flow
of goods” between them. Cherry Hill Vineyard, LLC v. Baldacci, 505 F.3d 28, 32–33 (1st
Cir. 2007). State action that “discriminates against interstate commerce on its face” in
either purpose or effect is invalid unless the state interest it promotes “cannot be achieved

Cámara de Mercadeo, Industria, y Distribución de Alimentos v. Vázquez, Civil No. 11-1978 (BJM)

through any reasonable nondiscriminatory alternative.”

Id. at 33.

13

Regulation is

discriminatory if it both benefits identifiable in-state economic interests and burdens outof-state interests. Grant’s Dairy-Me., LLC v. Comm’r of Me. Dep’t of Agric., Food &
Rural Res., 232 F.3d 8, 21 (1st Cir. 2000) (citing Or. Waste Sys., Inc. v. Dep’t of Envt’l
Quality, 511 U.S. 93, 99 (1994)).

Non-discriminatory regulation that nonetheless

burdens interstate commerce is only invalid if that burden is “clearly excessive” when
balanced against the intended local benefits. Cherry Hill Vineyard, 505 F.3d at 33 (citing
Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970); Wine and Spirits Retailers, Inc. v.
Rhode Island, 481 F.3d 1, 11 (1st Cir. 2007)). A plaintiff bears the burden of proving
such excessiveness. Wine and Spirits Retailers, 481 F.3d at 15. Moreover, under Pike,
“the fact that a law may have devastating economic consequences on a particular
interstate firm is not sufficient to rise to a Commerce Clause burden.” Pharm. Research
& Mfrs. Of Am. v. Concannon, 249 F.3d 66, 84 (1st Cir. 2001) (internal quotations
omitted).
Plaintiffs do not argue that the scanning regulation is facially discriminatory;
rather, they claim the regulation is unconstitutional under Pike as it imposes a substantial
burden on interstate commerce with no concomitant benefit to the Commonwealth.
Plaintiffs, however, have failed to prove that Regulation No. 8067 burdens interstate
commerce in a meaningful way.
The scanning procedure, plaintiffs contend, burdens interstate commerce because
it affects “the flow of cargo.” Compl., ¶ 35. Specifically, the plaintiffs claim that the
scanning procedure creates congestion and delays, and generally impedes the flow of
cargo leaving the terminals. The plaintiffs, however, failed to adduce at trial convincing
testimony that the scanning procedure is in fact causing significant delays at the Port of
San Juan. To the contrary, Iván Burgos, Sea Star’s Terminal Manager, and the only
witness operating a site currently subject to scanning, testified that Port Authority
personnel allow every third container to bypass the scanning procedure altogether when

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congestion builds at the scanning station. Day 3 Tr. 18; see also Day 2 Tr. 51 (Flynn
testified to observing trucks moving through every 30-45 seconds). And in their post-trial
brief, the plaintiffs summarily assert the scanning procedure imposes “operational
burdens on shipping companies” without reference to any exhibits or witness testimony.
Pl. Br. 22. The only witness that testified to observing delays is José Ángel Vázquez
Colón, Treasurer of the Puerto Rico Shipping Association and President of American
President Lines (“APL”). Vázquez testified that he observed delays at the scanning
stations when he visited those sites. Day 1 Tr. 61. However, Vázquez’s employer, APL,
does not have scanning stations (Day 1 Tr. 63), and thus he does not first-hand knowledge
as to whether the scanning procedure consistently produces significant delays. I find no
credible evidence tending to show that the scanning procedure impacts the flow of cargo
in a significant way.
During trial, plaintiffs also alluded to other burdens resulting from the regulation,
namely (1) administrative burdens for billing the enhanced security fee to customers, and
(2) Sea Star’s inability to release containerized cargo or empty containers to its customers
after hours.

As to the administrative burdens associated with the ESF, plaintiffs’

witnesses admitted that most of the fee and related administrative costs are passed on to
their customers. Plaintiffs have not had to hire additional staff to deal with the supposed
increased clerical work. And with regard to Sea Star’s inability to release containerized
cargo or empty containers after hours, plaintiffs have failed to explain how that
inconvenience constitutes a burden on interstate commerce. Sea Star cannot point to an
instance in which it lost a customer because of the scanning regulation. Day 3 Tr. 29–30.
Moreover, even if Sea Star had lost a customer due to the scanning regulation, its loss of
profits alone does not establish a Commerce Clause burden. Concannon, 249 F.3d at 84
(noting a regulation’s possible impact on a particular company’s profits is insufficient to
constitute a burden on interstate commerce).

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Contrary to plaintiffs’ assertions, Regulation No. 8067 has produced intended
local benefits. The regulation has two intended purposes: (1) to “identify unreported
taxable goods” for tax collection purposes, and (2) “to improve security and safety at the
port facilities.” Reg., art. II. Improving tax collection efforts and port security are
legitimate state goals. The scanning procedure has enabled the Treasury Department to
identify undeclared taxable merchandise, and assess $322,130.84 in taxes owed and
$31,441 in administrative penalties. Exhs. 4 at 1; C & D. It is also undisputed that the
scanning technology enables PRPA to detect the importation of dangerous contraband
into Puerto Rico. The fact that more can be done to enhance the safety and security of
port facilities does not negate the public benefits achieved through Regulation No. 8067.
Absent a showing that the challenged regulation burdens interstate commerce,
plaintiffs have failed to meet their burden of showing that the regulation’s burden on
interstate commerce is “excessive.” Wine and Spirits Retailers, 481 F.3d at 15. Even
assuming that the scanning procedure imposes some delays and administrative burdens
on the plaintiffs, that burden is not clearly excessive when balanced against the
regulation’s intended and actual benefits. Concannon, 249 F.3d at 84.
Therefore, I find that the scanning procedures under Regulation No. 8067 do not
violate the dormant Commerce Clause.
III.

Enhanced Security Fee
Plaintiffs next argue that the enhanced security fee is unconstitutional under the

Commerce Clause.
A port fee violates the Commerce Clause unless it is (1) “based on some fair
approximation of use or privilege for use,” (2) does not discriminate against interstate
commerce, and (3) is not “excessive in comparison with the governmental benefit
conferred.” See Evansville-Vanderburgh Airport Auth. Dist. v. Delta Airlines, Inc., 405
U.S. 707, 716–17 (1972). While the Evansville test arose in the context of airport fees, it

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has been extended to other fees on interstate transportation. See, e.g., Doran v. Mass.
Tpk. Auth., 348 F.3d 315, 320–21 (1st Cir. 2003) (applied to toll road discounts).4
A Connecticut case dealing with port passenger fees illustrates the application of
the Evansville test. The Bridgeport Port Authority (“BPA”) managed the municipality’s
port district, which included a dock from which a ferry service ran, a shipping terminal,
and a shipyard. Bridgeport & Port Jefferson Steamboat Co. v. Bridgeport Port Auth., 567
F.3d 79, 82 (2d Cir. 2009), cert. denied, 130 S.Ct. 1075 (2010). A passenger fee was
assessed on all persons and vehicles embarking on or disembarking from the ferry
service, and the resulting revenues funded “essentially all” of the BPA’s operating
expenses. Id. at 82–83. The district court applied the Evansville test and found that
several BPA expenditures were of no benefit to ferry passengers, and that the fee
therefore violated the Commerce Clause.

Id. at 85.

The Second Circuit affirmed,

explaining that “[t]he limits of both a fair approximation of use and excessiveness are
plainly exceeded when the fees support a BPA budget that includes . . . a development
project for reducing traffic on I–95, the interstate highway running generally along the
Connecticut shore.” Id. at 87. The court noted that ferry passengers who drive along I95 are undoubtedly “grateful for any reduction in traffic,” but such general “quality-oflife improvements cannot be said to confer an actual or potential benefit to the ferry
passengers as users of the ferries and thus exceed the bounds of what may reasonably
serve as the basis for the BPA’s fee.” Id. at 87 (emphasis added).

4

General state taxes affecting interstate commerce are subject to the similar but different
four-pronged Complete Auto Transit test. Complete Auto Transit, Inc. v. Brady, 430 U.S. 274,
279 (1977) (a general state tax pasts muster under the Commerce Clause where the tax applies to
an activity with a substantial nexus to the taxing state, is fairly apportioned, does not discriminate
against interstate commerce, and is fairly related to services provided by the State); see also
Commonwealth Edison Co v. Montana, 453 U.S. 609, 618 (1981). Here, the ESF was designed
as a specific-fund revenue measure not part of Puerto Rico’s general revenue scheme. Day 3 Tr.
81. Hence, Evansville’s analysis of user fees and taxes designated for a specific state-provided
facility is the appropriate framework for evaluating the constitutionality of the ESF. See
Commonwealth Edison, 453 U.S. at 621–22 & n.12.

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17

Here, plaintiffs argue that the ESF fails on all three prongs of Evansville: (1) that
the ESF does not fairly approximate use or privilege of use because the fee goes towards
activities that present no benefit to plaintiffs; (2) that the fee is excessive in comparison to
the governmental benefits conferred; and (3) that the fee discriminates against interstate
commerce. PRPA in response argues that the fee fairly approximates the plaintiffs’ use of
the port facilities, and that all revenues from the ESF are directed towards activities
intended to improve port security and benefit the plaintiffs.
To begin with, I note that the ESF does not discriminate against interstate
commerce. While most or all cargo arriving at the Port of San Juan originates from
outside of Puerto Rico, Regulation No. 8067 and the ESF apply with equal force to
vessels originating from other ports within Puerto Rico. Under a plain reading of the
regulation, a ship carrying cargo from Ponce to San Juan would also be subject to the
ESF. Reg., art. IV. Thus, it cannot be said that the ESF on its face discriminates against
interstate or foreign commerce to the benefit of intrastate businesses. See Evansville, 405
U.S. at 717.
The enhanced security fee, however, is problematic under the fair approximation
and excessiveness limits set out in Evansville. As in Bridgeport, the fair approximation
and excessiveness prongs substantially overlap, because plaintiffs here argue that the fee
goes towards activities that they neither use nor benefit from. To evaluate that claim, it is
necessary to first examine which activities the fee supports. Of the $20.4 million that has
been collected from ESF, around $17.2 million, or 84%, has been paid to the scanning
service provider. Exh. XI. And around $1 million annually from the ESF goes towards
paying the salaries of Treasury agents who work at the scanning stations. Day 3 Tr. 78.
On the whole, it appears that the vast majority of ESF revenues are spent on expenses
relating to the scanning procedure, and a much smaller amount is directed towards
general port security (around $1.7 million annually). With respect to the fees, plaintiffs’
claim rests on the assumption that the scanning process provides them with no specific

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18

benefits, and it is true that the scanning process benefits all Puerto Rico residents by
enabling the government to more effectively identify unreported merchandise or detect
hidden contraband. But companies subject to scanning do individually benefit—from a
reputational standpoint—through increased consumer confidence in the shipping
company’s reliability and trustworthiness as a safe and law-abiding shipping operator.
Cf. Center for Auto Safety, Inc. v. Athey, 37 F.3d 139, 143–44 (4th Cir. 1994) (finding
Maryland’s regulatory fee on charitable organizations a constitutional user fee because
the charities benefit through enhanced “donor confidence . . . owing to the state’s
regulation of charities”). At the same time however, this reputational benefit, enjoyed by
the three shipping operators currently subject to scanning, does not attach to those that
are not in fact subject to scanning. With this understanding, I turn to the remaining two
prongs under Evansville.
In determining whether the fee is a fair approximation of use, “the Constitution
requires not ‘precision’ but” rather calls for “‘rough approximation’ in matching fee and
benefit.” N.H. Motor Transp. Ass’n v. Flynn, 751 F.2d 43, 47 (1st Cir. 1984) (quoting
Evansville, 405 U.S. at 715–16). Here, the fee does not roughly approximate use or
privilege of use, where a significant portion of shipping operators subject to the fee have
not used, nor have they had the privilege of using, the scanning stations funded by the
ESF. First, shipping operators pay enhanced security fees for all bulk cargo they bring in
to the port, but none of the bulk cargo is actually scanned. Day 1 Tr. 24; Day 3 Tr. 19.
Additionally, some shipping operators do not have scanning stations in their terminals—
any containers they bring in, and upon which the ESF is assessed, are not scanned. See,
e.g., Day 1 Tr. 52–53, 73. And while the three shipping companies with the largest
volume—Crowley, Horizon, and Sea Star—are equipped with scanning stations, the
evidence indicates that around 37 to 38% of ESF funds are paid for by shipping operators
that do not have the privilege of using the very scanning facilities that the ESF supports.
Exhs. 2, XI.

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The ESF also cannot be characterized as a harbor or port fee providing for general
fire and safety services that benefit all shipping operators equally. Clyde Mallory Lines v.
Alabama, 296 U.S. 261, 267 (1935) (sustaining the constitutionality of a port fee imposed
for police and fire services). Defendants assert that $1.7 million from the ESF is directly
allocated to general security. But the bulk of ESF revenues are intended for and have
been used to facilitate the scanning of all inbound cargo. Reg., art. IV, ¶ J (“The
Enhanced Security Fees . . . are established to recover . . . all costs incurred by the
Authority in providing, repairing and maintaining an efficient scanning system”).
Moreover, Alfredo Martínez Cintrón, PRPA’s Chief of Tariffs, admitted that the $1.7
million in security expenses were already accounted for in a pre-existing port fee, which
has not been reduced since the ESF’s implementation. Day 3 Tr. 101–02. Because a
significant portion of ESF funds is dedicated to scanning facilities that are not actually
enjoyed by a significant portion of ESF payors, the fee does not represent a fair
approximation matching benefits to burdens.
For similar reasons described above, the ESF also imposes on some shipping
operators a burden that is excessive relative to the benefits conferred. The plaintiff bears
the burden of proving that a fee is unconstitutionally excessive. See Flynn, 751 F.2d at
47. The excessiveness inquiry focuses on the benefits conferred on the fee’s payors, i.e.
the shipping operators, and the costs incurred in providing those benefits. See Cohen v.
R.I. Tpk. & Bridge Auth., 775 F. Supp. 2d 439, 449 (D.R.I. 2011). The question here is
not how the dollars are actually spent, but “the relationship between the amount the fees
raise and the amount the state likely spends.” Flynn, 751 F.2d at 49. Here, the state
likely spends very little ESF-generated funds on shipping companies that lack scanning
stations at their terminals. These companies receive little, if any, benefits from the ESF;
they certainly cannot partake in the benefits flowing from the scanning process. In
comparison, they are heavily burdened—to the tune of millions of dollars in enhanced
security fees annually. And while Marcos Olivo, Assistant Manager of Security at PRPA,

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20

testified that minor crimes, vandalisms, and cargo thefts have gone down since the
regulation’s implementation, the defendants failed to explain how the collection and use
of ESF funds has actually contributed to that decline in crime. In short, there is no
credible evidence that the decrease in crime at the Port of San Juan is a benefit resulting
from the ESF; and the defendants have failed to rebut plaintiffs’ showing that the
shipping operators who are not scanned receive little to no benefit from the fee.
Indeed, the most tangible benefits flowing from the ESF are the improvements in
tax collection efforts and the detection of dangerous contraband flowing into Puerto Rico.
These improvements undoubtedly benefit the public, including the plaintiffs, but it cannot
be said that those shipping companies without scanning stations receive an “actual or
potential benefit” as users of the Port of San Juan.

Bridgeport, 567 F.3d at 87.

Therefore, I find that plaintiffs have met their burden of showing the ESF’s excessiveness
with respect to those shipping companies that lack scanning stations.
Having found that the fee is unconstitutional with respect to some plaintiffs does
not end the inquiry. Plainly, the three shipping operators equipped with scanning stations,
and who benefit in some degree from the ESF, stand in contrast to those that do not have
the privilege of using the scanning stations, and thus benefit very little from the fee.
Thus, it is necessary to separately examine whether the fee is constitutional as applied to
the shippers that have scanning stations at their terminals. I find that it is. First, the ESF
is not a flat fee, but a sliding scale based on the amount of cargo unloaded at the Port, and
which fairly approximates each shipper’s use of their scanning stations. It suffices that
each container they unload is potentially subject to scanning, and it does not matter that
during busy workdays, some containers may bypass the scanning procedure. Flynn, 751
F.2d at 47.
Second, the fee is not excessive relative to the benefits conferred. As discussed
above, the scanning process does specifically benefit shippers with scanning stations
because it creates a regulatory scheme that enhances the shipping operators’ reputation

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21

for safety and reliability. The customers of shipping operators that have scanning stations
and are subject to 100% scanning can be more confident that the shipper operates in
accordance with the law, because undeclared merchandise or dangerous contraband will
be detected via the scanning process. Given these benefits, plaintiffs have failed to show
that the ESF is excessive. Indeed, a significant portion ($17 million) of the fees collected
($20 million) thus far have gone to paying S2 services, the scanning service provider.
Under these circumstances, the ESF is more akin to the New Hampshire hazardous waste
truck license fee that the First Circuit upheld in Flynn, because here the amount collected
is “roughly equivalent to the services the state provides” the shipping operators or the
“costs that they impose upon the state.” 751 F.2d at 49.
In sum, the enhanced security fee is unconstitutional as applied to shipping
operators without scanning facilities because it (1) does not fairly approximate their use
or privilege of using port scanning facilities, and (2) is excessive relative to the benefits
conferred. The fee, however, is constitutional as applied to shipping operators that have
and use PRPA scanning facilities.
IV.

Tonnage Clause
For the first time at trial, plaintiffs asserted that the ESF violates the Tonnage

Clause of the Constitution, which forbids states “without the consent of Congress, [to] lay
any duty of tonnage.” U.S. Const. art. I § 10, cl. 3. The Tonnage Clause was intended to
work in conjunction with the Import-export Clause (art. I §10, cl. 2) to restrain the states
from exercising “the taxing power injuriously to the interests of each other.” Polar
Tankers, Inc. v. City of Valdez, 557 U.S. 1, 7, (2009) (internal quotations omitted). The
Clause has been interpreted to prohibit all state and local duties, in whatever form, that
impose “a charge for the privilege of entering, trading in, or lying in a port.” Polar
Tankers, 557 U.S. at 9. States may not impose taxes on vessels “to raise general revenues
[or] to regulate trade.” New Orleans S.S. Ass’n v. Plaquemines Port, Harbor & Terminal
Dist., 874 F.2d 1018, 1023 (5th Cir.1989) (citing Clyde Mallory Lines, 296 U.S. at 265–

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22

66). “The [C]lause does not, however, prohibit charges made by a state authority for
services rendered such as pilotage, wharfage, charges for the use of locks, or fees for
medical inspections.” Plaquemines Port, Harbor & Terminal Dist. v. Fed. Mar. Comm’n,
838 F.2d 536, 545 (D.C. Cir. 1988). But fees imposed must be “apportioned as closely as
is practicable” to the benefits received, id. at 545 n. 8, and the service must be available
to all fee payers, Clyde Mallory, 296 U.S. at 266.
Plaintiffs’ Tonnage Clause argument raises a question of first impression, as the
Tonnage Clause has never been held to apply to Puerto Rico. However, the court need
not reach this question today. This claim was not raised in the pleadings, and plaintiffs
have not moved to amend the pleadings to conform to the evidence. Fed. R. Civ. P.
15(b). Moreover, the issue was not tried by express or implied consent of the parties.
Keeler v. Hewitt, 697 F.2d 8, 13 (1st Cir. 1982) (finding defendants neither expressly nor
impliedly consented to try a malicious prosecution claim that was first raised at trial,
where defendants objected to plaintiffs’ request for jury instructions on malicious
prosecution). Plaintiffs failed to mention the Tonnage Clause during the past two years of
this proceeding, and only first raised it during the hearing. The defendants, in their posttrial briefs, objected to plaintiffs’ last-minute attempt to insert the Tonnage Clause
argument. PRPA Br. 18. I find that the defendants did not consent to trying the Tonnage
Clause argument.
I further find that permitting conformance of the pleadings would be prejudicial to
the defendants. Had defendants been timely alerted to the claim, they would have been
able to seek discovery relevant to the Tonnage Clause argument, “engage in appropriate
legal research, and perhaps offer evidence and authority tending to rebut the claim.”
Keeler, 697 F.2d at 14. In sum, “no satisfactory reason appears for not having identified

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23

this issue before trial” and thus the court refuses to entertain this new theory of liability.5
Id.
V.

Declaratory Judgment
The plaintiffs seek a declaratory judgment that Regulation No. 8067 is

unconstitutional in violation of the Commerce Clause.
The Declaratory Judgment Act provides in relevant part:
In a case or controversy within its jurisdiction . . . any court of the United
States, upon the filing of an appropriate pleading, may declare the rights
and other legal relations of any interested party seeking such declaration,
whether or not further relief could be sought. Any such declaration shall
have the force and effect of a final judgment or decree and shall be
reviewable as such.
28 U.S.C. § 2201(a). “Since its inception, the Declaratory Judgment Act has been
understood to confer on federal courts unique and substantial discretion in deciding
whether to declare the rights of litigants.” Wilton v. Seven Falls Co., 515 U.S. 277, 286
(1995). However, when “matters of great public moment are involved,” courts should
exercise caution in granting declaratory relief, and declaratory judgments in such
circumstances “should not be pronounced unless the need is clear, not remote or
speculative.” El Dia, Inc. v. Hernandez Colon, 963 F.2d 488, 494 (1st Cir. 1992)
(internal quotations omitted); see also Ernst & Young v. Depositors Econ. Prot. Corp., 45
F.3d 530, 535 (1st Cir. 1995).
With these principles in mind, I find that a declaratory judgment would be neither
appropriate nor helpful in this case. The very nature of this public law controversy
counsels against granting a declaratory judgment. Furthermore, the legal relationship
between the parties does not require clarification, and the court’s findings on the
substantive claims and the permanent injunction will provide the necessary relief to the
5

Disposition of the Tonnage Clause claim is also unnecessary because of the above
ruling that the ESF is unconstitutional under the dormant Commerce Clause and Evansville. See
supra Pt. III.

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24

plaintiffs. See Bridgeport & Port Jefferson Steamboat Co. v. Bridgeport Port Auth., 566
F. Supp. 2d 81, 106 (D. Conn. 2008) (similarly declining to grant declaratory relief).
VI.

Permanent Injunction
To obtain injunctive relief, a plaintiff must satisfy the well-established four-part

test and demonstrate:
(1) that it has suffered an irreparable injury; (2) that remedies available at
law, such as monetary damages, are inadequate to compensate for that
injury; (3) that, considering the balance of the hardships between the
[parties], a remedy in equity is warranted; and (4) that the public interest
will not be disserved by a permanent injunction.
eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 390 (2006). The plaintiffs have
established that the enhanced security fee, as applied to shipping operators that neither
use nor have the privilege of using PRPA scanning facilities, violates the Commerce
Clause. Remedies at law, including monetary damages, are inadequate to remedy these
plaintiffs’ injuries because the government currently continues to assess and collect ESFs
in excess of constitutional limits.

Plaintiffs’ monetary injuries are also difficult to

accurately measure. Considering the balance of hardships, injunctive relief is warranted
because plaintiffs continue to be subject to the unconstitutional fee; and the public
interest will not be disserved by an injunction limited to curbing the constitutional
violation established in this proceeding.
The court hereby enjoins the defendants from collecting enhanced security fees
from shipping operators that are not being scanned pursuant to Regulation No. 8067.
CONCLUSION
For the foregoing reasons, plaintiffs’ request for declaratory relief is DENIED
and injunctive relief is GRANTED IN PART. This opinion sets out the court’s separate
findings of fact and conclusions of law pursuant to Fed. R. Civ. P. 52(a)(1). Final
judgment shall be entered.

Cámara de Mercadeo, Industria, y Distribución de Alimentos v. Vázquez, Civil No. 11-1978 (BJM)

IT IS SO ORDERED.
In San Juan, Puerto Rico, this 16th day of October, 2013.
S/Bruce J. McGiverin
BRUCE J. MCGIVERIN
United States Magistrate Judge

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