Act 2: A Closed Class of One (Part 2)

Among the most significant points within Act 2 that create a "closed class of one" special law, the first point I will mention is not the most egregious, but it is one of the points that I find most interesting, so I will start with the definition of a "large capacity ferry vessel":

PART II SECTION 2. As used in this Act, unless the context otherwise requires:
"Large capacity ferry vessel" means any inter-island ferry vessel that transports, is designed to transport, or is intended to transport per voyage at least five hundred passengers, two hundred motor vehicles, and cargo between the islands of the state...

From the U.S. DOT RITA BTS most recent annual database update there were 691 ferry vessels operating in the U.S. Of those 691 ferries in the U.S., 102 can transport at least 500 people at a time. Of those 102 ferries, only 5 operating in the U.S. can also transport at least 200 vehicles.

There are 2 more ferries in Washington state that fall just under the 200 vehicles number, and there are 3 ferries in Alaska that fall just 1 person short of the 500 passengers required capacity. There are also some very interesting 600 passengers only (no vehicles) fast ferries operating in Santa Catalina, Martha's Vineyard, Boston, and in the U.S. Virgin Islands. But, only 5 ferries are operating in the U.S. that meet the new and arbitrary requirements for a 'large capacity ferry vessel' class of 500 passengers and 200 vehicles that Attorney General Bennett created in drafting Act 2. [See quote and points below at bottom about the logical size of vessel recommended to HSF for these conditions by Austal's former CEO which fall short of Bennett's Act 2 requirements for a 'large capacity ferry vessel.']

Of those 5 currently operating 'large capacity ferry vessels' in the U.S., 3 are gainfully deployed by the Washington State DOT, 1 is an Incat fast ferry built outside of the U.S. and so operating and gainfully deployed between Maine and Nova Scotia, and the Alakai and her sister ship are the only other vessels in the U.S. that meet the 'large capacity ferry vessel' class description. Other than the Alakai and her sister ship, none of those vessels would be available to be deployed to Hawaii. Of the 5 ships built in the U.S. (required under the Jones Act) to operate in the U.S. that meet the 'large capacity ferry vessel' class description, all of them took about 2 years to build, the expected time it would take to build a new ship to meet the 'large capacity ferry vessel' requirements.

But, Act 2 was passed Oct. 31, 2007, and by it's content sunsets in late June 2009:

PART IV SECTION 18. This Act shall take effect upon its approval; provided that this Act shall be repealed on the earlier of:
(1) The forty-fifth day, excluding Saturdays, Sundays, and holidays, following adjournment sine die of the regular session of 2009; or
(2) Upon acceptance of the final environmental impact statement as provided in this Act...

From the time that Act 2 was passed on Oct. 31, 2007, to when it sunsets (June 2009) 45 days after the Legislative session ends sine die in early May 2009, will have been a maximum of 20 months, not enough time to build a new 'large capacity ferry vessel' in the United States that would meet the Act 2 and Jones Act requirements.

There are no other available vessels other than HSF Hulls 615 and 616 that could meet the new and arbitrary vessel class requirements and timing in Act 2 drafted by Attorney General Bennett.

The following are the only ferry vessels operating in the U.S. that fall under the new and arbitrary Act 2 class description of a "large capacity ferry vessel":

VESSEL------MSPEED-----OPSPEED-----PASSENGERCAP-----VEHICLECAP---YEARSBUILT---OWNER
Wenatchee-----21------------18----------------2500-------------------218---------1996-1998---WASH ST DOT
Puyallup--------21------------18----------------2500-------------------218---------1997-1999---WASH ST DOT
Tacoma---------21------------18----------------2500-------------------218---------1995-1997---WASH ST DOT
The Cat---------40------------36----------------900--------------------240----------2000-2002---BAY FERRIES
Alakai A-615---40------------35----------------836---------------------230---------2004-2007---HSF
A-616----------40+-----------35+--------------866---------------------282---------2007-2009---HSF

It is an interesting question of how and why Attorney General Bennett came up with the 500 people and 200 vehicles limitations for Act 2 benefits. Of the two, the 200 vehicles is the more significant number that dramatically limits this.

Among Austal vessel designs, the 200 vehicles requires their larger vessel sizes of 86 meters or larger (their 72 meter and smaller designs handle much less than 200 vehicles). Among Incat vessel designs, the 200 vehicles also requires their vessel sizes of 86 meters or larger (their 81 meter and smaller designs handle less than 200 vehicles). These 86 meter and larger fast ferries are less fuel efficient on longer routes of 3 hours or more. An interesting quote on this from Pacific Business News:

"Whether Hawaii Superferry will be profitable is something that concerns Alan Lerchbacker, the former CEO of Austal USA, which built the ferry. 'I just worry about getting enough business to cover costs because of the sheer size of it,' said Lerchbacker, who came to Hawaii to sell the ferry but works in another industry now. Lerchbacker said he suggested a 72-meter vessel only to see the company order the 100-meter model. 'For a smooth ride on the ocean, that ferry will have to go over 35 knots, and it costs a lot of money on fuel to go that fast,' he said. 'They may need 400 to 500 passengers to break even.'"

From the OTF Reports it is clear that since beginning operations, HSF has averaged well under 200 vehicles per load (often times close to and under 100 vehicles) and averaged well under 400 passengers per load (often times between 200 and 300 passengers).

There are no other available vessels other than HSF Hulls 615 and 616 that could meet the new and arbitrary vessel class requirements and timing in Act 2, but even they struggle to do so profitably because of the mismatch in scale, design, propulsion, and arbitrarily drafted legislative requirements of Act 2 that do not properly match the economic conditions and environmental distances of this location.


Act 2: A Closed Class of One (Part 3) to follow soon,
Aloha, Brad