Federal Register / Vol. 85, No. 235 / Monday, December 7, 2020 / Notices 78913 

1CPRC is the Canadian rail operating subsidiary 

of Canadian Pacific Railway Ltd. CPRC and its U.S. 

rail operating subsidiaries do business as Canadian 

Pacific (CP). 

2BTIT is an indirect subsidiary of OMERS 

Administration Corporation. (Pet. 2.) 

3CPRC filed its petition as a continuance-incontrol exemption. It appears, however, that the 

transaction involves CPRC acquiring BTIT’s 83.5% 

ownership interest, and as such, it has been 

captioned as a control exemption. 

4CPRC states that the Partnership owns the 

Detroit River Tunnel Holding Corporation, which 

owns DRTC. (Pet. 2, n.1.) 

5 In 2001, the Board exempted a control 

transaction under which CPRC held 50% of 

ownership interests in the newly created 

Partnership as well as ‘‘increased operational 

control of the Tunnel.’’ See Borealis Infrastructure 

Trust Mgmt. Inc.—Acquis. Exemption—Detroit 

River Tunnel Co., FD 33984 et al., slip op. at 7 (STB 

served Dec. 19, 2001). BTIT also acquired the 

remaining 50% of ownership interests in the 

Partnership from Canadian National Railway 

Company (CN). Id. at 3, 5 (finding that BTIT did not 

require Board authorization to acquire its 50% 

share in the Partnership). CPRC states that, in 2009, 

BTIT acquired an additional 33.5% ownership 

interest in the Partnership from CPRC, increasing its 

ownership to its current 83.5% share and reducing 

CPRC’s ownership interest to 16.5%, and that the 

OMM Agreement, under which CPRC dispatches 

trains and controls operations, continued in effect. 

(Pet. 2–3.) 

6CPRC states that operations in the Tunnel, 

including CPRC’s, are pursuant to DRTC-granted 

trackage rights. See, e.g., Canadian Pac. R.R.— 

Trackage Rights Exemption—Detroit River Tunnel 

Co., FD 34006 (STB served Mar. 16, 2001). CPRC 

notes that CP traffic currently accounts for 

approximately 98% of all Tunnel traffic and that, 

currently, CSX Transportation, Inc. (CSXT), is the 

only carrier with an active Tunnel User Agreement. 

CPRC further notes that CN’s occasional use of the 

Tunnel has been pursuant to detour agreements and 

that CN primarily moves traffic via a nearby Paul 

M. Tellier Tunnel. (Pet. 3, nn.6 & 8.) 

7 Given this finding, the Board need not 

determine whether the transaction is limited in 

scope. See 49 U.S.C. 10502(a). 

SURFACE TRANSPORTATION BOARD 

[Docket No. FD 36448] 

Canadian Pacific Railway Company— 

Control Exemption—Detroit River 

Tunnel Company 

On October 16, 2020, Canadian 

Pacific Railway Company (CPRC),1 a 

Class I carrier, filed a petition under 49 

U.S.C. 10502 for exemption from the 

prior approval requirements of 49 U.S.C. 

11323–24 to allow CPRC and its wholly 

owned noncarrier subsidiary, DRTP 

Holdings ULC, ‘‘to acquire certain 

partnership interests’’ from Borealis 

Transportation Infrastructure Trust 

(BTIT) 2 in the Detroit River Tunnel 

Partnership (the Partnership), which 

indirectly owns the Detroit River 

Tunnel a/k/a the Michigan Central 

Railway Tunnel (Tunnel), and ‘‘to 

continue in control of the Tunnel.’’ (Pet. 

1.) 3 The Board will grant CPRC’s 

petition for exemption, subject to 

standard labor protective conditions. 

Background 

Detroit River Tunnel Company 

(DRTC), which is indirectly owned by 

the Partnership,4 owns the Tunnel, a 

two-bore rail tunnel that connects 

Windsor, Ont., and Detroit, Mich. 

DRTC’s rail line extends 3.24 miles, 

between milepost 228.08 in Detroit and 

milepost 224.84 in Windsor, of which 

approximately 1.79 miles are located 

within the United States. (Pet. 1–2.) 

Pursuant to a 2001 Operating, 

Management, and Maintenance 

Agreement (OMM Agreement) and a 

2009 Amended and Restated 

Partnership Agreement (Partnership 

Agreement) between CPRC and BTIT, 

CPRC currently exercises operational 

control over the Tunnel. (Id. at 3.) 

Under the OMM Agreement, CPRC 

maintains the Tunnel and dispatches 

and controls Tunnel rail operations.5

(Id.) CPRC is also responsible for 

ensuring that other railroads can use the 

Tunnel pursuant to each railroad’s 

Tunnel User Agreement.6 (See Pet., Ex. 

3, OMM Agreement, Article 2.4.) CPRC 

currently owns 16.5% of the ownership 

interests in the Partnership; BTIT owns 

the remaining 83.5%. (Pet. 2.) 

Under the proposed transaction, 

CPRC’s acquisition of BTIT’s 83.5% 

ownership interest in the Partnership 

would result in CPRC, directly and via 

DRTP Holdings ULC, holding 100% of 

the ownership interests in the Tunnel. 

(Pet. 4.) CPRC states that it would 

continue to dispatch, operate, and 

maintain the Tunnel, as the Partnership 

Agreement and OMM Agreement would 

remain in effect. (Id. at 3.) CPRC notes 

that other railroads would continue to 

maintain their access to the Tunnel. 

CPRC thus states that the transaction 

would not have an adverse effect on 

service levels and that no significant 

operational changes are planned. (Id. at 

3–4.) 

Discussion and Conclusions 

Under 49 U.S.C. 11323(a)(3), the 

acquisition of control of a rail carrier by 

any number of rail carriers requires 

prior Board approval. Under section 

10502(a), however, the Board must 

exempt a transaction or service from 

regulation if it finds that: (1) Regulation 

is not necessary to carry out the rail 

transportation policy (RTP) of 49 U.S.C. 

10101; and (2) either the transaction or 

service is limited in scope, or regulation 

is not needed to protect shippers from 

the abuse of market power. 

In this case, an exemption from the 

prior approval requirements of sections 

11323–24 is consistent with the 

standards of section 10502. Detailed 

scrutiny of the proposed transaction 

through an application for review and 

approval under sections 11323–24 is not 

necessary here to carry out the RTP. 

Approval of the transaction would 

result in CPRC increasing its ownership 

share of the Partnership with no 

lessening of competition or change in 

dispatch and operations of the Tunnel. 

An exemption would promote the RTP 

by: Minimizing the need for federal 

regulatory control over the transaction, 

section 10101(2); ensuring the 

development and continuation of a 

sound rail transportation system that 

would continue to meet the needs of the 

public, section 10101(4); fostering 

sound economic conditions in 

transportation, section 10101(5); 

encouraging efficient management, 

section 10101(9); and providing for the 

expeditious resolution of this 

proceeding, section 10101(15). Other 

aspects of the RTP would not be 

adversely affected. 

Regulation of the control transaction 

is not needed to protect shippers from 

an abuse of market power.7 Nothing in 

the record indicates that any shipper 

would lose an existing rail service 

option as a result of the proposed 

transaction. According to CPRC, it 

would continue to dispatch, operate, 

and maintain the Tunnel, as it has since 

2001. CPRC also states that, pursuant to 

the terms of the OMM Agreement, other 

railroads would continue to be able to 

use the Tunnel pursuant to Tunnel User 

Agreements. Currently, CP traffic 

accounts for approximately 98% of all 

Tunnel traffic and CSXT is the only 

carrier with an active Tunnel User 

Agreement. The transaction thus would 

not result in any shipper losing access 

to rail service or foreclose any 

transportation options currently 

available to shippers. Moreover, no 

shipper (or any other entity) has 

objected to the control transaction. 

Under 49 U.S.C. 10502(g), the Board 

may not use its exemption authority to 

relieve a carrier of its statutory 

obligation to protect the interests of 

employees. Accordingly, as a condition 

to granting this exemption, the Board 

will impose the standard employee 

protective conditions in New York Dock 

Railway—Control—Brooklyn Eastern 

District Terminal, 360 I.C.C 60, aff’d 

New York Dock Railway v. United 

States, 609 F.2d 83 (2d Cir. 1979). 

The control transaction is exempt 

from environmental reporting 

requirements under 49 CFR 

1105.6(c)(1)(i) because it will not result 

in any significant change in carrier 

operations. Similarly, the transaction is 

exempt from the historic reporting 


khammond on DSKJM1Z7X2PROD with NOTICES
78914 Federal Register / Vol. 85, No. 235 / Monday, December 7, 2020 / Notices 

requirements under 49 CFR 

1105.8(b)(3), because it will not 

substantially change the level of 

maintenance of railroad properties. 

CPRC requests authority to control the 

Tunnel by December 15, 2020, so that 

the parties can close the transaction 

before the end of the year. The 

exemption will be effective December 

15, 2020, and petitions to stay will be 

due by December 10, 2020. Petitions to 

reopen will be due by December 22, 

2020. 

It is ordered: 

1. Under 49 U.S.C. 10502, the Board 

exempts from the prior approval 

requirements of 49 U.S.C. 11323–25 the 

control transaction described above, 

subject to the employee protective 

conditions in New York Dock Railway— 

Control—Brooklyn Eastern District 

Terminal, 360 I.C.C 60, aff’d New York 

Dock Railway v. United States, 609 F.2d 

83 (2d Cir. 1979). 

2. Notice of the exemption will be 

published in the Federal Register. 

3. The exemption will become 

effective on December 15, 2020. 

Petitions for stay must be filed by 

December 10, 2020. Petitions to reopen 

must be filed by December 22, 2020. 

Decided: December 1, 2020. 

By the Board, Board Members Begeman, 

Fuchs, and Oberman. 

Tammy Lowery, 

Clearance Clerk. 

[FR Doc. 2020–26811 Filed 12–4–20; 8:45 am] 

BILLING CODE 4915–01–P 

DEPARTMENT OF TRANSPORTATION 

Federal Highway Administration 

[FHWA Docket No. FHWA–2020–0014] 

Surface Transportation Project 

Delivery Program; Alaska Department 

of Transportation Third Audit Report 

AGENCY: Federal Highway 

Administration (FHWA), U.S. 

Department of Transportation (DOT). 

ACTION: Notice; Request for comment. 

SUMMARY: The Moving Ahead for 

Progress in the 21st Century Act (MAP– 

21) established the Surface 

Transportation Project Delivery Program 

that allows a State to assume FHWA’s 

environmental responsibilities for 

environmental review, consultation, and 

compliance under the National 

Environmental Policy Act (NEPA) for 

Federal highway projects. When a State 

assumes these Federal responsibilities, 

the State becomes solely responsible 

and liable for carrying out the 

responsibilities it has assumed, in lieu 

of FHWA. This program mandates 

annual audits during each of the first 4 

years of State participation to ensure 

compliance with program requirements. 

This notice announces and solicits 

comments on the third audit report for 

the Alaska Department of 

Transportation and Public Facilities 

(DOT&PF). 

DATES: Comments must be received on 

or before January 6, 2021. 

ADDRESSES: Mail or hand deliver 

comments to Docket Management 

Facility: U.S. Department of 

Transportation, 1200 New Jersey 

Avenue SE, Room W12–140, 

Washington, DC 20590. You may also 

submit comments electronically at 

www.regulations.gov. All comments 

should include the docket number that 

appears in the heading of this 

document. All comments received will 

be available for examination and 

copying at the above address from 9 

a.m. to 5 p.m., e.t., Monday through 

Friday, except Federal holidays. Those 

desiring notification of receipt of 

comments must include a selfaddressed, stamped postcard or you 

may print the acknowledgment page 

that appears after submitting comments 

electronically. Anyone can search the 

electronic form of all comments in any 

of our dockets by the name of the 

individual submitting the comment (or 

signing the comment, if submitted on 

behalf of an association, business, or 

labor union). The DOT posts these 

comments, without edits, including any 

personal information the commenter 

provides, to www.regulations.gov, as 

described in the system of records 

notice (DOT/ALL–14 FDMS), which can 

be reviewed at www.dot.gov/privacy. 

FOR FURTHER INFORMATION CONTACT: Mr. 

David T. Williams, Office of Project 

Development and Environmental 

Review, (202) 366–5074, 

David.Williams@dot.gov, or Mr. Jay 

Payne, Office of the Chief Counsel, (202) 

366–4241, James.O.Payne@dot.gov; 

Federal Highway Administration, U.S. 

Department of Transportation, 1200 

New Jersey Avenue SE, Washington, DC 

20590. Office hours are from 8:00 a.m. 

to 4:30 p.m., e.t., Monday through 

Friday, except Federal holidays. 

SUPPLEMENTARY INFORMATION: 

Electronic Access 

An electronic copy of this notice may 

be downloaded from the specific docket 

page at www.regulations.gov. 

Background 

The Surface Transportation Project 

Delivery Program, codified at 23 U.S.C. 

327, commonly known as the NEPA 

Assignment Program, allows a State to 

assume FHWA’s environmental 

responsibilities for review, consultation, 

and compliance for Federal highway 

projects. When a State assumes these 

Federal responsibilities, the State 

becomes solely liable for carrying out 

the responsibilities it has assumed, in 

lieu of FHWA. The DOT&PF published 

its application for NEPA assumption on 

May 1, 2016, and made it available for 

public comment for 30 days. After 

considering public comments, DOT&PF 

submitted its application to FHWA on 

July 12, 2016. The application served as 

the basis for developing a memorandum 

of understanding (MOU) that identified 

the responsibilities and obligations that 

the DOT&PF would assume. The FHWA 

published a notice of the draft MOU in 

the Federal Register on August 25, 

2017, with a 30-day comment period to 

solicit the views of the public and 

Federal agencies. After the close of the 

comment period, FHWA and DOT&PF 

considered comments and proceeded to 

execute the MOU. Effective November 

13, 2017, DOT&PF assumed FHWA’s 

responsibilities under NEPA, and the 

responsibilities for NEPA-related 

Federal environmental laws described 

in the MOU. 

Section 327(g) of title 23, U.S.C., 

requires the Secretary to conduct annual 

audits to ensure compliance with the 

MOU during each of the first 4 years of 

State participation and, after the fourth 

year, monitor compliance. The FHWA 

must make the results of each audit 

available for public comment. The 

second audit report of DOT&PF 

compliance was finalized on February 

25, 2020. This notice announces the 

availability of the third audit report for 

DOT&PF and solicits public comment 

on same. 

Authority: Section 1313 of Public Law 

112–141; Section 6005 of Public Law 109–59; 

23 U.S.C. 327; 23 CFR 773. 

Nicole R. Nason, 

Administrator, Federal Highway 

Administration. 

Surface Transportation Project Delivery 

Program, FHWA’s Audit of the Alaska 

Department of Transportation 

April 6–10, 2020 

Executive Summary 

This report summarizes the results of 

the Federal Highway Administration’s 

(FHWA) third audit of the Alaska 

Department of Transportation and 

Public Facilities’ (DOT&PF) assumption 

of FHWA’s project-level National 

Environmental Policy Act (NEPA) 

responsibilities and obligations 

pursuant to a 23 U.S.C. 327 


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