COMISIÓN DE RELACIONES
FEDERALES, INTERNACIONALES Y ESTATUS
2 de abril de 2020
Lcdo. Joel A. Pizá Batiz
Director Ejecutivo
Autoridad de Puertos
PO Box 362829
San Juan, PR00936-2829
Vía Email: JPiza@prpa.pr.gov
Estimado Lcdo. Pizá:
Reciba un cordial saludo. Adjunto para su información y referencia copia de una
comunicación que remitiera el 17 de marzo de 20202, el Antitrust Division del U.S.
Department of Justice, por conducto del Assistant Attorney General, Makan Delrahim, a
la Federal Maritime Commission (FMC) en relación al acuerdo cooperativo enmendado,
FMC Agreement No.:201292-001 (el Acuerdo).
Traigo a su atención con el mayor sentido de urgencia, que los planteamientos allí
esbozados, son cónsonos con las reservas que consistentemente hemos comunicado a
usted y otros funcionarios del Gobierno de Puerto Rico sobre los serios efectos nocivos
del acuerdo/fusión entre Luis Ayala Colón y Puerto Rico Terminals (PRT) para el pueblo
de Puerto Rico.
Nos reiteramos en que el acuerdo atenta contra los mejores intereses del Pueblo de Puerto
Rico y merece atención urgente del Gobierno de Puerto Rico quien tiene una
responsabilidad indelegable en protección de los consumidores y de la libre competencia
en Puerto Rico.
Agradezco su acostumbrada consideración a este importante asunto urgente y
fundamental.
Cordialmente,
s/José F. Aponte Hernández
Presidente
c.c. Hon. Wanda Vázquez Garced, Gobernadora de Puerto Rico.
Hon. Dennise Longo Quiñones, Secretaria de Justicia.

 U.S. DEPARTMENT OF JUSTICE
Antitrust Division
MAKAN DELRAHIM
Assistant Attorney General
Main Justice Building
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530-0001
(202) 514-2401 /(202) 616-2645 (Fax)

March 17, 2020

Rachel E. Dickon
Secretary
Federal Maritime Commission
800 North Capitol Street, NW
Washington, DC 20573-0001

Re:

Puerto Nuevo Terminals, LLC, Cooperative Working Agreement,
Amended FMC Agreement No. 201292-001

Dear Ms. Dickon:
The Antitrust Division of the United States Department of Justice ("Department")
respectfully submits these comments in response to the filing of the amended Puerto
Nuevo Terminals, LLC, Cooperative Working Agreement, No. 201292-001 ("Amended
Agreement"), by Puerto Rico Terminals, LLC ("PRT") and Luis A. Ayala Colon Suers.,
Inc. ("Ayala"). See 85 Fed. Reg. 13161 (March 2, 2020).
Based on the Department's review to date, the Amended Agreement appears to be
economically tantamount to a merger of PRT and Ayala's terminal operations in San
Juan. The Department strongly urges the Commission to carefully scrutinize the
Amended Agreement to determine whether the Commission has jurisdiction over the
agreement under the Shipping Act of 1984 ("the Act"). If the Commission determines
that it does have jurisdiction, the Department urges the Commission to consider carefully
whether the Amended Agreement is narrowly tailored to achieve procompetitive benefits
while limiting the risk of anticompetitive harm, and if the Amended Agreement is not so
tailored, the Commission should seek to enjoin the agreement or require its modification.
If the Amended Agreement falls within the scope of the Act, the conduct covered
in the Amended Agreement could enjoy total immunity from the U.S. antitrust laws. The

 Rachel Dickon, Secretary, Federal Maritime Commission
March 17, 2020
2
Department has long taken the position that the general antitrust exemption provided by
the Act is no longer justified.' To the extent that agreements continue to be immunized
under the Act, it is important for those agreements to be limited and precise, as it is wellsettled that antitrust immunities should be construed as narrowly as possible.2 In fact,
Congress explicitly excluded from the Act "an acquisition by any person, directly or
indirectly, of any voting security or assets of any other person." 46 U.S.C. § 40301(c).
Pursuant to this section, mergers and acquisitions are outside the jurisdiction of the
Commission and are not eligible for antitrust immunity.3 The Commission should be
wary of agreements that attempt to immunize conduct outside the scope of the Act by
using legal formalities to obscure de facto mergers or acquisitions.
The original Cooperative Working Agreement filed by PRT and Ayala on March
27, 2019, enabled the parties to create the joint venture Puerto Nuevo Terminals, LLC
("PNT"). After review of that agreement, the Commission indicated it had not reached
consensus as to whether it fell within the scope of the Act. Chairman Khouri stated that,
in his judgment, the agreement as originally filed in effect sought to extend the
protections of the Act to a de facto merger or acquisition in the guise of a joint venture.4
The Commission should revisit Chairman Khouri's concerns and carefully scrutinize all
relevant facts to determine whether the Amended Agreement is a de facto merger or
acquisition that falls outside the scope of the Act.

See, e.g., Letter from Renata B. Hesse, Acting Assistant Attorney General, to Secretary,
FMC, Re: The OCEAN Alliance Agreement, at 2, FMC No. 012426, Sept. 19, 2016,
https://www.justice.gov/atr/file/909131/download.
1

See, e.g., Union Labor Life Ins. Co. V. Pireno, 458 U.S. 119, 126 (1982) (antitrust
exemptions must be construed narrowly); Carnation Co. v. Pac. Westbound Conference,
383 U.S. 213, 218 (1966) (the Shipping Act of 1916 does not exempt the entire shipping
industry from the antitrust laws); Otter Tail Power Co. v. United States, 410 U.S. 366,
374 (1973) (narrowly construing antitrust exemptions in the Federal Power Act); Group
Life & Health Ins. Co. v. Royal Drug Co., 440 U.S. 205, 231-32 (1979) (narrowly
construing antitrust exemptions in the McCarran-Ferguson Act); United States v.
McKesson & Robbins, Inc., 351 U.S. 305, 316 (1956) (narrowly construing antitrust
exemptions in the Miller-Tydings and McGuire Acts); United States v. Borden Co., 308
U.S. 188, 198-200 (1939) (narrowly construing antitrust exemptions in the Agricultural
Marketing Agreement Act).
2

3 Section

40301(c) codifies the Supreme Court's decision in FMC v. Seatrain Lines, Inc.,
411 U.S.726 (1973), in which the Court rejected the Commission's argument that
mergers and acquisitions fell within the scope of the Shipping Act of 1916.
See Statement of Chairman Michael A. Khouri, Puerto Nuevo Terminals LLC
Cooperative Working Agreement, FMC No. 201292 (Oct. 15, 2019),
https://www.fmc.govistatement-chairman-lchouri-puerto-nuevo-terminals-11ch
4

 Rachel Dickon, Secretary, Federal Maritime Commission
March 17, 2020
3
Based on the Department's review to date, the amendments made to the original
agreement do not appear to change the nature of the agreement or any of the facts that led
to Chairman Khouri's concerns. Specifically, the addition of language in Section 5.3 of
the Amended Agreement, which provides for the continued operations of PRT at the
Army Terminal at the Port of San Juan, is unlikely to change the underlying economic
realities between the parties to the agreement. The Antitrust Division recognizes that
joint ventures may "have competitive effects that are identical to those that would arise if
the participants merged in whole or in part."5 We treat such a joint venture as a
horizontal merger and analyze it pursuant to the Horizontal Merger Guidelines.6 Such
analysis is particularly warranted where, as here, it appears that the joint venture partners
are competitors in a relevant market, the integration on its face appears to eliminate all
competition between them, and the collaboration does not terminate within a sufficiently
limited period by its own specific and express terms.7 The amendments do not appear to
alter these facts, and so likely would not alter how the Department would analyze this
joint venture under the antitrust laws.
If the Amended Agreement is outside the scope of the Act, the Department will
investigate whether the Amended Agreement violates the antitrust laws and, if
appropriate, act to protect competition and consumers.
If the Commission concludes that it does have jurisdiction over the Amended
Agreement, the Commission should carefully scrutinize the potential competitive effects
of the arrangement and ensure that it is narrowly tailored to achieve procompetitive
benefits while limiting the risk of anticompetitive harm. The Department is aware of
serious competitive concerns regarding the initial agreement raised by numerous parties.
Commenters indicated that there would be little or no competition to PNT in the
provision of terminal services to container vessels operated by international carriers at the
Port of San Juan. Such concerns are worthy of close consideration. The Department
believes that the Amended Agreement does nothing to mitigate the potential
anticompetitive effects of the joint venture, as the amendments do not appear to change
the fact that PRT and Ayala will no longer compete independently in the future.
Carriers, their customers, and all consumers benefit from vigorous competition in
the shipping industry, including among marine terminal operators. The Commission,
through the enforcement of the Act, and the Department, through the enforcement of the
antitrust laws, both play an important role in protecting competition in the shipping
industry. The Commission should rigorously police its jurisdiction and prevent the Act's
antitrust immunity provisions from being used improperly to insulate conduct outside the

Fed. Trade Comm'n & U.S. Dep't of Justice, Antitrust Guidelines for Collaborations Among Competitors,
§ 1.3(2000), available at https://www.fte.govisites/default/files/documents/public_events/joint-venturehearings-antitrust-guide lines-c ollaboration-am ong-competitors/ftcdoj guidelines-2 .pdf.
6 Id.
7 Id
5

 Rachel Dickon, Secretary, Federal Maritime Commission
March 17, 2020
4
scope of the Act. To the extent that the Commission concludes that the Amended
Agreement is immune from the antitrust laws, it is especially important that the
Commission rigorously scrutinize the agreement to ensure that it does not harm
competition.

Sincerely,

Makan Delrahim