Rule2025-17513
Application for Presidential Permit Authorizing the Construction, Connection, Operation, and Maintenance of Facilities for Transmission of Electric Energy at International Boundaries
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Published
September 11, 2025
Effective
September 12, 2025
Issuing agencies
Energy Department
Abstract
The Department of Energy (DOE or the Department) is publishing this document to respond to comments received on the DFR titled, "Application for Presidential Permit Authorizing the Construction, Connection, Operation and Maintenance of Facilities for Transmission of Electric Energy at International Boundaries," published on May 16, 2025, and effective September 12, 2025.
Full Text
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<title>Federal Register, Volume 90 Issue 174 (Thursday, September 11, 2025)</title>
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[Federal Register Volume 90, Number 174 (Thursday, September 11, 2025)]
[Rules and Regulations]
[Pages 43905-43907]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2025-17513]
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Rules and Regulations
Federal Register
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having general applicability and legal effect, most of which are keyed
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Federal Register / Vol. 90, No. 174 / Thursday, September 11, 2025 /
Rules and Regulations
[[Page 43905]]
DEPARTMENT OF ENERGY
10 CFR Part 205
[DOE-HQ-2025-0011]
RIN 1901-AB68
Application for Presidential Permit Authorizing the Construction,
Connection, Operation, and Maintenance of Facilities for Transmission
of Electric Energy at International Boundaries
AGENCY: Grid Deployment Office, Department of Energy.
ACTION: Final rule; confirmation of effective date.
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SUMMARY: The Department of Energy (DOE or the Department) is publishing
this document to respond to comments received on the DFR titled,
``Application for Presidential Permit Authorizing the Construction,
Connection, Operation and Maintenance of Facilities for Transmission of
Electric Energy at International Boundaries,'' published on May 16,
2025, and effective September 12, 2025.
DATES: As of September 11, 2025, the effective date of September 12,
2025 (90 FR 31131), for the direct final rule published May 16, 2025
(90 FR 20753), is confirmed.
ADDRESSES: The docket for this rule, which includes the Federal
Register notices, comments, and other supporting documents and
materials, is available for review at <a href="http://www.regulations.gov">www.regulations.gov</a>. All
documents in the docket are listed in the <a href="http://www.regulations.gov">www.regulations.gov</a> index.
However, not all documents listed in the index may be publicly
available, such as information that is exempt from public disclosure.
The docket web page can be found at <a href="http://www.regulations.gov/docket/DOE-HQ-2025-0011">www.regulations.gov/docket/DOE-HQ-2025-0011</a>. The docket web page contains instructions on how to access
all documents, including public comments, in the docket, as well as a
summary.
FOR FURTHER INFORMATION CONTACT: Mr. Jeffrey Novak, U.S. Department of
Energy, Office of the General Counsel, GC-1, 1000 Independence Avenue
SW, Washington, DC 20585; (202) 586-5281 or
<a href="/cdn-cgi/l/email-protection#b3f7fcf6f4d6ddd6c1d2dff0dcc6ddc0d6dff3dbc29dd7dcd69dd4dcc5"><span class="__cf_email__" data-cfemail="c4808b8183a1aaa1b6a5a887abb1aab7a1a884acb5eaa0aba1eaa3abb2">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. General Discussion
On May 16, 2025, DOE published a DFR (90 FR 20753) (May 2025 DFR)
to rescind the application process codified at 10 CFR 205.320 through
10 CFR 205.329 concerning Presidential permits authorizing the
construction, connection, operation, and maintenance of facilities for
transmission of electric energy at international boundaries under
Executive Order (E.O.) 10485, as amended. DOE stated in that DFR that
if significant adverse comments were received by June 16, 2025, DOE
would withdraw the DFR or issue a new final rule which responds to
those significant adverse comments.
Because DOE received significant adverse comments on the DFR, DOE
extended the effective date of the direct final rule to September 12,
2025 (90 FR 31131) to allow enough time to consider and respond to the
comments submitted. DOE has reviewed the comments received and is
responding to them in this confirmation of effective date.
II. Responses to Comments
DOE received five comments in response to the May 2025 DFR; one in
support, one with no objection but with a recommendation to keep
certain permit application processes and keep a 30-day public comment
period, and three opposing the DFR. Listed is a summary of the comments
received and DOE's responses.
Table II.1--List of Commenters From the May 2025 DFR
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Commenter Reference in this DFR Comment No. in the docket Commenter type
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National Federation of NFIB.................. DOE-HQ-2025-0011-0002................. Non-Profit
Independent Business. Industry
Association.
T P........................... T P................... DOE-HQ-2025-0011-0003................. Individual.
Center for Biological CBD................... DOE-HQ-2025-0011-0004................. Non-Profit
Diversity. Conservation
Organization.
The Electric Reliability ERCOT................. DOE-HQ-2025-0011-0005................. Independent
Council of Texas, Inc. System
Operator.
Bridget C.E. Dooling.......... Dooling............... DOE-HQ-2025-0011-0006................. Individual.
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NFIB commented in support of the DFR, stating that revoking 10 CFR
205.309 through 10 CFR 205.329 will help increase efficiency by
removing provisions that burden applicants and allowing applications to
be submitted in a simpler fashion ``without all the necessary document
production and excessive expenses that the revoked regulations
previously required.'' (DOE HQ-2025-0011-0002 at p. 2-3). DOE
acknowledges NFIB's comments and support for this DFR. The agency's
intent of removing regulatory provisions is to increase efficiency of
the Federal permitting process and to enhance consistency with this
Administration's policy priorities focused on alleviating unnecessary
regulatory burdens.
ERCOT submitted a comment with no objection to the DFR but
encouraged DOE to continue publishing notices of applications for
Presidential Permits in the Federal Register and holding 30-day public
comment periods. ERCOT noted that projects requiring Presidential
Permits can impact a variety of entities, including grid operators like
ERCOT, and a notice-and-comment period is a valuable opportunity for
interested entities to evaluate potential projects and provide DOE
important feedback to inform DOE's review. (DOE-HQ-2025-0011-0005 at p.
1.)
DOE recognizes the value of the public comment period to inform
DOE's decision to issue a Presidential Permit. However, formal notice
and comment procedures result in a longer
[[Page 43906]]
adjudication period for potential Presidential permit applications and
are not required under E.O. 10485, as amended. The publication of a
notice in the Federal Register and the opening of a 30-day public
comment period significantly extends the agency's review and approval
process, which ultimately puts an additional burden on applicants.
Historically, DOE has received minimal public feedback during the 30-
day public comment period. Therefore, DOE declines to adopt the
suggestion by ERCOT to continue formally publishing notices in the
Federal Register for applications for Presidential Permits. DOE may
consider engaging with interested stakeholders through other means
during the application process as the public interest may in its
judgment require.
Additionally, three comments opposed and asserted that the DFR
violates the Administrative Procedure Act (APA) and National
Environmental Policy Act (NEPA). For example, commenter T P argued that
DOE did not follow proper notice and comment rulemaking procedures and
that a Categorical Exclusion (CX) was not appropriate for the DFR
because the rulemaking action has the potential for uncertain
environmental risks, potential impacts on sensitive resources, and
potential for cumulative impacts, which require DOE to perform either
an environmental assessment or environment impact statement. (DOE HQ-
2025-0011-0003 at p. 1). Additionally, CBD argued that the rule is
arbitrary and capricious, did not provide a rational basis for the
change, did not provide adequate notice and comment, and that applying
a CX was not appropriate for the DFR. (DOE-HQ-2025-0011-0004 at p. 2-
4). Further, Dooling stated that the May 2025 DFR did not satisfy the
good cause exemption from notice and comment rulemaking under the APA.
(DOE-HQ-2025-0011-0006 at p. 4).
As for the basis of DOE's rulemaking, in issuing a Presidential
Permit, DOE does not act pursuant to its congressionally established
authority as a Federal agency, but on behalf of the President pursuant
to a delegation of the President's authority under the United States
Constitution.\1\ It is settled and established law that the President
is not an ``agency'' within the meaning of the Administrative Procedure
Act (APA) and that Presidential actions are not subject to NEPA
review.\2\ DOE notes that its Presidential permit decisions are subject
to review and may be modified or revoked by the President.\3\
Accordingly, DOE stated that the May 2025 DFR was issued pursuant to
the President's directive in E.O. 14192, which instructs the executive
branch to reduce regulatory burden wherever possible. Further, E.O.
10485, as amended, allows DOE broad discretion to ``issue such rules
and regulations, and to prescribe such procedures, as it may from time
to time deem necessary or desirable for the exercise of authority
delegated to it by [E.O. 10485]'' and does not require those procedures
to be published in the Code of Federal Regulations.
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\1\ 18 FR 5397 (09/09/1953) (preamble).
\2\ Franklin v. Massachusetts, 505 U.S. 788, 800 (1992) (holding
the President is not subject to judicial review under the APA, given
``the separation of powers and the unique constitutional position of
the President); see also Dalton v. Specter, 511 U.S. 462, 469-471
(1994); Portland Audubon Soc'y v. Endangered Species Committee, 984
F.2d 1534, 1547 (9th Cir. 1993); and, Greene County. Planning Bd. v.
Fed. Power Comm'n, 528 F.2d 38 (2d Cir. 1975) (holding that issuance
of a Presidential permit by DOE's predecessor agency was not subject
to judicial review under the Federal Power Act because the issuance
of such a permit is ``a function rooted in the President's power
with respect to foreign relations if not as Commander in Chief of
the Armed Forces'').
\3\ 18 FR 5397 (Sec. 4) (``All Presidential Permits . . . issued
hereunder, shall remain in full force and effect until modified or
revoked by the President or Secretary of Energy.'')
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Although decisions to issue Presidential permits under E.O. 10485
are not subject to the APA, DOE acknowledges that the APA requires that
agencies provide all interested persons with fair notice and an
opportunity to comment on a rulemaking. See 5 U.S.C. 553(b) & (c). The
May 2025 DFR provided the public with fair notice of DOE's changes to
its own administrative procedures regarding filing requirements for the
90 FR 20753. See 90 FR 20753 (discussing specific administrative
changes to the filing requirements). DOE also requested comments on the
May 2025 DFR, and stated, if the Department received significant
adverse comments, the Department would withdraw the rule or issue a new
final rule that responds to such comments. Thus, DOE has provided
interested persons with fair notice and an opportunity to comment as
required by the APA. So, the lack of discussion of a good cause
exemption under 5 U.S.C. 553(b)(B) in the DFR is irrelevant as the
notice and comment procedures under 5 U.S.C. 553(b) and (c) have been
observed before this rule takes effect. Commenters cannot argue they
were denied fair notice and an opportunity to comment solely based on
how the notice was labeled. See Little Sisters of the Poor Saints Peter
& Paul Home v. Pennsylvania, 140 S. Ct. 2367, 2384 (2020) (holding that
``[f]ormal labels aside, the [interim final rules] contained all of the
elements of a notice of proposed rulemaking as required by the APA'').
Lastly, as outlined in Part II of the May 2025 DFR, DOE completed a
regulatory review and analyzed this action in accordance with the NEPA
and DOE's Implementing Regulations at 10 CFR 1021 (part 1021), as in
effect at the time of the DFR's publication. In May 2025, DOE had
determined that the DFR qualified for a CX under appendix A6 to subpart
D of part 1021, Procedural rulemakings. 90 FR 20753, 20754. In July
2025, DOE revised part 1021 to remove appendix A and, concurrently, DOE
issued Implementing Procedures.\4\ The actions which were formally
identified in appendix A of subpart D to part 1021 now represent
actions that are excepted from NEPA based on the definition of ``major
Federal action'' in section 111(10) of NEPA. Therefore, DOE has no
obligation to review the DFR pursuant to NEPA.
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\4\ DOE NEPA Implementing Procedures June 30 2025, <a href="https://www.energy.gov/sites/default/files/2025-06/2025-06-30-DOE-NEPA-Procedures.pdf">https://www.energy.gov/sites/default/files/2025-06/2025-06-30-DOE-NEPA-Procedures.pdf</a>.
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III. Conclusion
For the reasons discussed in the preceding sections of this
document, DOE is not withdrawing the May 2025 DFR, which finalizes
amendments to its administrative procedures to update and streamline
the general requirements for submitting applications for Presidential
Permits. DOE also notes, to the extent that 5 U.S.C. 553 applies to the
delay of effective date, it is exempt from notice and comment because
it constitutes a rule of procedure under 5 U.S.C. 553(b)(A) and for
which no notice or hearing is required by statute. Additionally, this
action is not a ``substantive rule'' for which a 30-day delay in
effective date is required under 5 U.S.C. 553(d).
Signing Authority
This document of the Department of Energy was signed on September
8, 2025, by Chris Wright, Secretary of Energy. That document with the
original signature and date is maintained by DOE. For administrative
purposes only, and in compliance with requirements of the Office of the
Federal Register, the undersigned DOE Federal Register Liaison Officer
has been authorized to sign and submit the document in electronic
format for publication, as an official document of the Department of
Energy. This administrative process in no way alters the legal effect
of this document upon publication in the Federal Register.
[[Page 43907]]
Signed in Washington, DC, on September 9, 2025.
Treena V. Garrett,
Federal Register Liaison Officer, U.S. Department of Energy.
[FR Doc. 2025-17513 Filed 9-10-25; 8:45 am]
BILLING CODE 6450-01-P
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