This Part 4 will look at the timing and logistical problems and incompatibilities with the possibility of whether there could be a second 'large capacity ferry vessel' company that could get approval to operate under Act 2. Part 5 of this series will look at how 'need' was and was not estabilished by the PUC, commented on formally by Mina Morita, and how Act 2 subtly altered that PUC conditioned 'need' to at one point what Act 2 calls 'critical' need, regardless of the fact that there was never a formal study undertaken to determine if in fact these designs would satisify any 'need' at all.
For Part 4 the ideal document to be able to review and reference would be the Operating Agreement between DOT and HSF dated 9/7/05 and any amendments to that. If I were a State Supreme Court Justice, I would want to get a complete and thorough look at that document as it may shed light on any exclusive points of agreement that may exist that could logistically limit use of harbor facilities by any other 'large capacity ferry vessel' company, or any other points that the State might not be able to repeat for another company. Unfortunately that document is not available to the wider public to view, so I cannot draw from it.
Nevertheless, one can make some interesting conclusions, not widely known, from the official documents that are available to the public on this, and so I will make use of those listed in Part 1 of this series.
First, we should review some of the timeframe involved with Act 2. Act 2 was passed by the Legislature on 10/31/2007 and was enacted by the Governor on 11/02/2007. Act 2 (except for Section 16) will be repealed no later than the 45th day, excluding Saturdays, Sundays, and holidays, following adjournment sine die (early May) of the regular session of 2009, which would be about July 6th, 2009. That can be expected to be a total of a few days more than 20 months.
Assuming another company had a qualified 'large capacity ferry vessel' available to operate here by the end of those 20 months, that other 'large capacity ferry vessel' company would in that time period need to:
1) Attain a Certificate of Public Convenience and Necessity from the PUC;
2) Negotiate an operating agreement with the DOT that would not be in conflict with the other ferry company's operating agreement;
3) Issue a PUC approved tariff and schedule that would not conflict with the other ferry company's schedule;
4) Rely upon the State and DOT Harbors Division to have the additional facilities/alterations in place at the necessary harbors ferry terminals/barges while not in conflict with the other ferry company's logistical demands;
5) Rely upon Legislative approval for any additional funding not approved nor authorized by Act 2 that would be necessary for ferry terminal/barge alterations to assist more than one 'large capacity ferry vessel' company;
6) Comply with DOT and Belt Collins requirements in preparing the Act 2 'EIS.' (Presumed to be 1 'EIS' for the two or more companies; although, this is not clarified in Act 2 and might require 2 or more Act 2 'EIS's done simultaneously.); and
7) Rely upon the OEQC accepting the Act 2 Final Draft 'EIS' by the early July 2009 deadline.
Regarding the above point 1) A CPCN from the PUC: How long might this take and should it be given before or after the EIS is accepted? As an example for the time that it might take, on July 22, 2004, HSF filed an application for a CPCN and through an expedited process received a 'conditioned' CPCN on Dec. 30, 2004, a minimum expected period of about 5 months. It is clear under Chapter 343 that the CPCN should not be issued until after the EIS is completely resolved. (See Letter from OTF Hawaii County Member Michael Matsukawa, from page 58 of the OTF November Report to the Legislature and Formal Complaint from Rep. Hermina Morita to the PUC.) But, under Act 2 presumably the 'EIS' would not need to be resolved before the CPCN is issued, although it is hard to understand why the PUC would issue the CPCN to a new company in light of recent events without knowing whether the Act 2 'EIS' would be accepted. Nevertheless, under Act 2 the question of when the CPCN would be needed for a second 'large capacity ferry vessel' company depends on when it's vessel/s would actually be here to operate or not.
Regarding the above point 2) Negotiate an operating agreement with the DOT that would not be in conflict with any other ferry company's operating agreement: How long might this take? As an example of the time that it might take, HSF appears to have begun negotiations in mid-2004 with DOT for use of harbor facilities. A Letter of Intent (LOI) from DOT was later agreed to on December 9, 2004, and the completed Harbors Operating Agreement was reached on September 7, 2005. That is a minimum of 10 months of negotiations with DOT, or 13 to 14 months from the beginning of the PUC/Consumer Advocate applications to the completed Harbors Operating Agreement with DOT. As to whether this could be done with a second or more 'large capacity ferry vessel' company and not be in conflict with the prior Harbors Operating Agreement of Sept. 7, 2005, would require reviewing completely the Harbors Operating Agreement of Sept. 7, 2005, something not available to the general public but which should be available to the Hawaii State Supreme Court Justices.
Regarding the above point 3) Issue a PUC approved tariff and schedule that would not conflict with the other ferry company's schedule: What is the example of the tariff and schedule from HSF and how long did it take to issue following PUC approval of a CPCN for HSF? HSF's initial tariff and schedule is here and was issued much later but prior to need on April 11, 2007, more than 27 months after PUC approval of it's CPCN. The significant point here is not the amount of time involved but instead it would be whether another company could propose a schedule that would be compatible with HSF's schedule using at different times much of the same relatively limited pier space.
Regarding the above point 4) Additional facilities/alterations in place at the necessary harbors ferry terminals/barges while not in conflict with the other ferry company's logistical demands: Refers to each harbor's limited ferry pier space and barge/ramp measurements in place. For ferry pier space at Honolulu Pier 19 & 20, Kahului Harbor Pier 2, Nawiliwili Pier 1, and Kawaihae Pier 1 et.al., the key question is whether the State DOT may have already exclusively agreed to lease to HSF those gated facilities completely, all of the time? This would be determined by the Harbors Operating Agreement of Sept. 7, 2005. Click here to see properly scaled graphical representations of each pier mentioned above, pp. 25-33.
Another key problem would be HSF's approved plan to base both Hull 615 and Hull 616 at Pier 19 & 20 in Honolulu along with the barge there and begin both of those vessels' daily routes from that point. The space at the State's Ferry Piers 19 & 20 would not allow more than 2 'large capacity ferry vessels' with the barge to be there overnight as a base. A solution might be that HSF base Hull 616 at Kawaihae Harbor overnight which could actually be the basis of a much more efficient routing system than HSF currently has planned. These would likely be changes from HSF's existing Operating Agreement that HSF might not agree to.
For barge/ramp measurements there are no other American made Austal 'large capacity ferry vessels' (beyond Hulls 615 & 616) available for this purpose, and the exact measurements for the barge/ramps would likely vary for any other 'large capacity ferry vessel' type. In fact, recently DOT stated that they were waiting on the exact measurements for Hull 616 before they could finalize the design of any barge/ramp for use at Kawaihae Harbor. If a different maker were likely used for another 'large capacity ferry vessel', at a minimum some sort of adjustable alterations might need to be made to the barge ramps in order to marry to the slightly different exit/entrance heights of the vessels (as between Austal vs. Incat). Adjustable alterations to the barge/ramps would need to be able to be done within the 20 month life of Act 2 and not interrupt the service of HSF. This kind of adjustable alteration to the existing barge/ramps might or might not be possible. The alternative is that these space-consuming barge/ramps may very well not be useful for any other 'large capacity ferry vessels' than HSF's.
For an enlightening look at internal DOT communications on the development of harbor facilities for HSF click here.
Regarding the above point 5) Legislative approval for any additional funding not approved nor authorized by Act 2 that would be necessary for ferry terminal/barge alterations to assist more than one 'large capacity ferry vessel' company: From the Final OTF Report of Dec. 29, 2008, "At the Nov. 6, 2008 OTF meeting, DOT-Harbors informed the OTF [and media] that the State had reached the limit of the State funding authority...[as approved by the Legislature]. As such, the State did not intend to fund further ferry specific harbor improvements in excess of the $40 million appropriated by the Legislature." For further explanation of how all of the $40 million+ has been spent, see the State Auditor's Report Part II pp. 18, 22, and 30. Therefore, there is no more funding reauthorized by Act 2 available for any additional harbor alterations to facilitate the use of harbor facilities by any more than the one intended 'large capacity ferry vessel' company.
Regarding the above point 6) DOT/Belt Collins preparation of the Act 2 'EIS': DOT/Belt Collins had stated the following schedule in their Scoping Meetings with the public...
...But those dates were recently pushed back to the Act 2 Draft 'EIS' being released sometime in January 2009 and the 45 day comment period beginning then. Under this new schedule DOT/Belt Collins are giving themselves less time for Final Draft preparation and even less leeway should OEQC require additional re-submission as potentially envisioned in Act 2 Part III Section 12.
Regarding the above point 7) OEQC accepting the Act 2 Final Draft 'EIS' by the early July 2009 deadline: Act 2 (except for Section 16) will be repealed no later than the 45th day, excluding Saturdays, Sundays, and holidays, following adjournment sine die (early May) of the regular session of 2009, which would be about July 6th, 2009. That can be expected to be a total of a few days more than 20 months.
It is interesting to note that the DOT controlled OTF Committee just recommended to the Legislature in its Final Report (pp. 3 & 25), "Repeal the repeal date set forth in Act 2, Part 4, Section 18 (p. 25)." This would have the effect of creating a moving target for any other potential 'large capacity ferry vessel' companies and it may also be proposed to create a permanent exception to Chapter 343 for 'large capacity ferry vessels' not originally a part of Act 2 nor likely envisioned by Legislators previously voting for Act 2. Furthermore, this last proposal by the DOT/OTF could potentially be used to circumvent too narrow a State Supreme Court ruling on Act 2.
Am publishing this now, will make additions later,
Aloha, Brad
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