Federal Register / Vol. 74, No. 193 / Wednesday, October 7, 2009 / Notices 51643 

13For the purposes only of waiving the 30-day 

operative delay, the Commission has considered the 

proposed rule’s impact on efficiency, competition, 

and capital formation. See 15 U.S.C. 78c(f). 14 17 CFR 200.30–3(a)(12). 

designates the proposed rule change to 

be operative upon filing with the 

Commission.13

At any time within 60 days of the 

filing of such proposed rule change the 

Commission may summarily abrogate 

such rule change if it appears to the 

Commission that such action is 

necessary or appropriate in the public 

interest, for the protection of investors 

or otherwise in furtherance of the 

purposes of the Act. 

IV. Solicitation of Comments 

Interested persons are invited to 

submit written data, views, and 

arguments concerning the foregoing, 

including whether the proposed rule 

change is consistent with the Act. 

Comments may be submitted by any of 

the following methods: 

Electronic Comments 

• Use the Commission’s Internet 

comment form (http://www.sec.gov/ 

rules/sro.shtml); or 

• Send an e-mail to rulecomments@sec.gov. Please include File 

Number SR–NYSE–2009–101 on the 

subject line. 

Paper Comments 

• Send paper comments in triplicate 

to Elizabeth M. Murphy, Secretary, 

Securities and Exchange Commission, 

100 F Street, NE., Washington, DC 

20549–1090. 

All submissions should refer to File 

Number SR–NYSE–2009–101. This file 

number should be included on the 

subject line if e-mail is used. To help the 

Commission process and review your 

comments more efficiently, please use 

only one method. The Commission will 

post all comments on the Commission’s 

Internet Web site (http://www.sec.gov/ 

rules/sro.shtml). Copies of the 

submission, all subsequent 

amendments, all written statements 

with respect to the proposed rule 

change that are filed with the 

Commission, and all written 

communications relating to the 

proposed rule change between the 

Commission and any person, other than 

those that may be withheld from the 

public in accordance with the 

provisions of 5 U.S.C. 552, will be 

available for inspection and copying in 

the Commission’s Public Reference 

Room on official business days between 

the hours of 10 a.m. and 3 p.m. Copies 

of such filing also will be available for 

inspection and copying at the principal 

office of the Exchange. All comments 

received will be posted without change; 

the Commission does not edit personal 

identifying information from 

submissions. You should submit only 

information that you wish to make 

available publicly. All submissions 

should refer to File Number SR–NYSE– 

2009–101 and should be submitted on 

or before October 28, 2009. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.14

Florence E. Harmon, 

Deputy Secretary. 

[FR Doc. E9–24081 Filed 10–6–09; 8:45 am] 

BILLING CODE 8011–01–P 

DEPARTMENT OF TRANSPORTATION 

Pipeline and Hazardous Materials 

Safety Administration 

[Docket No. PHMSA–2009–0310; Notice No. 

09–05] 

Advisory Guidance; Transportation of 

Batteries and Battery-Powered Devices 

AGENCY: Pipeline and Hazardous 

Materials Safety Administration 

(PHMSA), DOT. 

ACTION: Safety advisory. 

SUMMARY: The Pipeline and Hazardous 

Materials Safety Administration 

(PHMSA) and the Federal Aviation 

Administration (FAA) are alerting 

shippers and carriers to the importance 

of transporting lithium batteries safely. 

PHMSA and FAA are concerned that 

many persons who ship lithium 

batteries do not recognize the hazards 

posed by these batteries during 

transportation. We are issuing this 

advisory guidance to (1) Inform persons 

of recent aviation incidents involving 

fires aboard both passenger and cargo 

aircraft and the potential hazards that 

shipments of lithium batteries may 

present while in transportation, (2) 

provide information concerning the 

current requirements for the 

transportation of lithium batteries and 

(3) inform persons of the actions we 

have taken to date and plan to take in 

the future to address the hazards of 

these batteries. 

SUPPLEMENTARY INFORMATION: 

I. Background 

Lithium batteries are considered 

hazardous materials in transportation 

because they present both chemical 

(e.g., flammable electrolytes) and 

electrical hazards. If not safely packaged 

and handled when transported, lithium 

batteries can become dangerous. 

Defective batteries or batteries that are 

misused, mishandled, improperly 

packaged, improperly stored, 

improperly manufactured, or 

overcharged can overheat and ignite 

and, once ignited, fires can be especially 

difficult to extinguish. Overheating has 

the potential to create a thermal 

runaway, a chain reaction leading to 

self-heating and release of the battery’s 

stored energy. Fires in aircraft can result 

in catastrophic events presenting unique 

challenges not encountered in other 

transport modes. 

II. Recent Transportation Incidents 

Since 1991, we have identified over 

40 air transport-related incidents 

involving lithium batteries and devices 

powered by lithium batteries. A list of 

these incidents can be found on the 

FAA Web site at: http://www.faa.gov/ 

about/office_org/headquarters_offices/ 

ash/ash_programs/hazmat/ 

aircarrier_info/media/ 

Battery_incident_chart.pdf. These 

incidents occurred aboard passenger 

aircraft and cargo aircraft, prior to 

loading batteries aboard an aircraft, and 

after batteries were transported by air. 

Many of the incidents were directly 

related to a lack of awareness of the 

required safety measures applicable to 

shipments of lithium batteries or 

because passengers failed to follow 

preventative measures to protect 

batteries from short circuit or damage. 

• On September 9, 2009 a passenger 

flight declared an emergency after a 

passenger attempted to hand the flight 

attendant a carrier-provided personal 

electronic device (PED). The PED was 

dropped and upon impact with the 

cabin floor the battery pack sparked and 

began smoking. Two flight attendants 

extinguished the fire with water. 

• On August 25, 2009 DOT received 

information related to a smoking and 

burning package that was discovered at 

a Medford, Massachusetts sorting 

facility. Upon inspection, the 

consignment was discovered to contain 

30 individual batteries grouped together 

in six or seven battery packs. The 

package contained lithium batteries that 

were shipped as general cargo. There 

were no markings or labels on the outer 

package indicating the material was a 

hazardous material. 

• On August 15, 2009 a package 

containing lithium ion batteries was 

found smoldering, and emitting smoke 

in a unit load device (ULD) in an aircraft 

loading facility in Taipei, Taiwan. The 

ULD had been carried from the Island of 

Macau. Personnel in the Taiwan facility 

responded quickly to extinguish the 


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51644 Federal Register / Vol. 74, No. 193 / Wednesday, October 7, 2009 / Notices 

smoldering fire before any open flames 

were seen. The packages were 

unmarked and the contents were noted 

on the invoice as ‘‘electrical adapters.’’ 

• On August 14, 2009 after landing 

the aircraft, the flight crew received a 

warning indicating smoke in the 

forward cargo compartment. Initial 

indications are that a fire originated 

with a shipment of approximately 1,000 

e-cigarettes, each containing a lithium 

metal battery. There were no markings 

or labels indicating the materials posed 

a specific hazard or contained lithium 

batteries. 

• On July 15, 2009 one of several 

related packages transported from 

Romulus, Michigan was discovered 

emitting smoke and smoldering upon 

arrival in Santo Domingo, Dominican 

Republic. Upon inspection, the package 

was found to contain numerous loose 

lithium-ion cell phone batteries 

haphazardly packed with no apparent 

measures to protect against shortcircuits or overheating. Package 

documentation indicated, ‘‘used 

batteries—non haz.’’ 

III. Current Regulatory Requirements 

The Hazardous Materials Regulations 

(HMR; 49 CFR parts 171–180) include 

requirements for packaging, hazard 

communication and handling lithium 

batteries. For transportation by all 

modes, lithium batteries of all types and 

sizes must pass a series of tests outlined 

in the UN Manual of Tests and Criteria. 

These tests are designed to ensure the 

battery can withstand the conditions 

typically encountered in transportation. 

In addition, all batteries must be 

packaged to prevent short circuits, 

including movement that could lead to 

short circuits and damage to the 

batteries (See § 172.102(c) SP 188, 189 

and § 173.185). The HMR also impose 

additional restrictions on the transport 

of lithium batteries in the air mode, 

including a limited prohibition on the 

transport of lithium metal batteries as 

cargo on board passenger aircraft (See 

§ 172.102(c) SP A100). Additionally, 

damaged, defective or recalled lithium 

batteries (including those being returned 

to the manufacturer as part of a safety 

recall) should not be transported aboard 

aircraft. Recommended practices for 

preparing recalled batteries for ground 

transportation are set forth in ‘‘DOT 

Guidance for the Safe Transportation of 

Recalled Lithium Batteries,’’ available 

for download at http:// 

safetravel.dot.gov/downloads.html. 

While certain small lithium batteries 

and cells are afforded exceptions from 

some regulatory requirements, the cells 

and batteries must be separated or 

packaged in a manner to prevent short 

circuits (See § 172.102(c) SP 188 and 

189). When a package contains multiple 

lithium cells or batteries, the package 

must be: 

• Marked to indicate that it contains 

lithium batteries and that special 

procedures should be followed in the 

event the package is damaged; 

• Accompanied by a document 

indicating that the package contains 

lithium batteries and special procedures 

should be followed in the event that the 

package is damaged; 

• Capable of withstanding a 1.2 meter 

drop test in any orientation without 

damage to cells or batteries contained in 

the package, without shifting of the 

contents that would allow short circuits 

and without release of package contents; 

and 

• Not more than 30 kg (66 pounds) 

gross mass. 

In addition all electrical devices that are 

likely to create sparks or generate a 

dangerous quantity of heat are forbidden 

for transportation unless packaged in a 

manner that precludes such an 

occurrence (See § 173.21). 

IV. Current and Future Efforts 

To enhance understanding and 

compliance with the HMR, we initiated 

several public outreach efforts designed 

to connect with both the travelling 

public and the larger shipping 

community. Since 2007 we have 

published numerous safety advisories, 

created the SafeTravel Web site 

dedicated to providing information to 

the air travelling public on the safe 

transport of a variety of materials 

including lithium batteries and 

partnered with airlines, battery 

manufacturers and others to spread our 

safety message. Additionally, the 

PHMSA Hazardous Materials Safety 

Assistance Team initiated an outreach 

campaign. As part of this campaign, 

team members visited retailers and 

others involved in the production, 

distribution and sale of lithium 

batteries. During their visits, team 

members provided kits on how to 

provide information on the safe 

shipment of lithium batteries and 

encouraged those persons the team 

visited to include the SafeTravel link on 

their Web sites. In March 2009, DOT 

published ‘‘Shipping Batteries Safely by 

Air; What You Need to Know,’’ targeting 

infrequent shippers who may be 

unfamiliar with appropriate packing 

methods. This guide explains the 

regulations covering the classification, 

packaging and hazard communication 

requirements for the transportation of 

batteries shipped by aircraft in terms 

easy to understand. 

Despite these outreach efforts, 

aviation incidents involving lithium 

batteries continue to occur. For 

example, the July 15, 2009 incident 

involved a shipment containing several 

thousand lithium ion cell phone 

batteries loosely placed into fiberboard 

packages, with no protection from short 

circuits and no package markings 

indicating the presence of lithium 

batteries. One of the packages was 

discovered emitting smoke after landing 

at its destination. These and similar 

incidents are the cause of significant 

concern by PHMSA and FAA. 

Documents included with the shipment 

indicated the packages contained nonhazardous used batteries. 

Non-compliance with the 

transportation requirements for lithium 

batteries poses serious safety 

consequences. Therefore, we are again 

increasing our efforts to reduce this risk 

by stepping up our already aggressive 

enforcement of the safety standards and 

reenergizing our awareness and 

outreach efforts. Accordingly, we are 

publishing this safety advisory to 

further promote awareness of the 

ongoing safety concern and ensure that 

shippers and carriers are aware of the 

risks associated with the transportation 

of lithium batteries, the current 

regulatory requirements applicable to 

such transportation, and that regulatory 

violations will be prosecuted to the 

maximum extent permitted under the 

law. We are particularly concerned with 

undeclared shipments of lithium 

batteries and we will be focusing on 

discovering these shipments and those 

persons responsible for offering them in 

transportation. We encourage anyone 

with information on those engaged in 

this practice to bring them to our 

attention through our online complaints 

Web site at: http://www.phmsa.dot.gov/ 

phmsa-ext/feedback/hazmatComplaints

RegsViolationsForm.jsp or by calling the 

Hazardous Materials Information Center 

at: 1–800–467–4922. 

Persons who violate the HMR may be 

subject to significant civil penalties and/ 

or criminal fines and imprisonment. In 

determining the amount of a civil 

penalty the following factors will be 

determined: (1) The nature, 

circumstances, extent, and gravity of the 

violation; (2) with respect to the 

violator, the degree of culpability, and 

history of prior violations, the ability to 

pay, and any effect on the ability to 

continue to do business; and (3) other 

matters that justice requires. Maximum 

civil penalties may be imposed of up to 

$50,000 per violation or $100,000 per 

violation if a death, serious illness, or 

severe injury occurs to a person or 

substantial destruction of property. 


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Federal Register / Vol. 74, No. 193 / Wednesday, October 7, 2009 / Notices 51645 

Potential criminal penalties include 

fines of up to $500,000 and/or ten years 

in jail. In a recent enforcement case, 

PHMSA assessed a total civil penalty of 

$360,000 for multiple violations of the 

HMR relating to the improper shipment 

of used batteries for recycling or 

disposal. To date, FAA has closed over 

75 investigations concerning battery 

violations observed in air transport and 

has collected over $1,000,000 in civil 

penalties. 

More detailed information on the 

requirements in the HMR governing the 

shipment of batteries and additional 

guidance are available on DOT’s Hazmat 

Safety Web site: http:// 

www.phmsa.dot.gov/hazmat. The HMR 

are also accessible through our Web site, 

and answers to specific questions may 

be obtained from the Hazardous 

Materials Information Center at 1–800– 

467–4922 (in Washington, DC, call 202– 

366–4488). 

Issued in Washington, DC, on September 

29, 2009. 

Theodore L. Willke, 

Associate Administrator for Hazardous 

Materials Safety. 

[FR Doc. E9–24184 Filed 10–6–09; 8:45 am] 

BILLING CODE 4910–60–P 

DEPARTMENT OF TRANSPORTATION 

Federal Highway Administration 

Notice of Final Federal Agency Actions 

on United States Highway 281 in Texas 

AGENCY: Federal Highway 

Administration (FHWA), DOT. 

ACTION: Notice of Limitation on Claims 

for Judicial Review of Actions by FHWA 

and Other Federal Agencies. 

SUMMARY: This notice announces actions 

taken by the FHWA and other Federal 

agencies that are final within the 

meaning of 23 U.S.C. 139(l)(1). The 

actions relate to a proposed highway 

project, United States Highway 281 (US 

281), beginning at Redland Road and 

heading north to north of Marshall Road 

in Bexar County in the State of Texas. 

Those actions grant licenses, permits, 

and approvals for the project. 

DATES: By this notice, the FHWA is 

advising the public of final agency 

actions subject to 23 U.S.C. 139(l)(1). A 

claim seeking judicial review of the 

Federal agency actions on the highway 

project will be barred unless the claim 

is filed on or before April 5, 2010. If the 

Federal law that authorizes judicial 

review of a claim provides a time period 

of less than 180 days for filing such 

claim, then that shorter time period still 

applies. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Salvador Deocampo, District Engineer, 

Federal Highway Administration, 300 E. 

8th Street, Rm. 826, Austin, Texas 

78701; telephone: (512) 536–5950; email: salvador.deocampo@fhwa.dot.gov. 

The FHWA Texas Division Office’s 

normal business hours are 7:45 a.m. to 

4:15 p.m. You may also contact Ms. 

Dianna Noble, Texas Department of 

Transportation, 125 E. 11th Street, 

Austin, Texas 78701; telephone: (512) 

416–2734. 

SUPPLEMENTARY INFORMATION: Notice is 

hereby given that the FHWA and other 

Federal agencies have taken final agency 

actions by issuing licenses, permits, and 

approvals for the following highway 

project in the State of Texas: US 281, 

beginning at Redland Road and heading 

north to north of Marshall Road in Bexar 

County in the State of Texas. The 

project will be approximately 3.1 miles 

long and will construct ‘‘Super Street’’ 

intersections (also known as restricted 

crossing U-turn (RCUT) intersections) at 

the intersections of US 281 and Encino 

Rio (modified RCUT), Evans Road, 

Stone Oak Parkway and Marshall Road. 

The ‘‘Super Street’’ intersection 

prohibits cross-street traffic from going 

straight through or turning left at the 

divided highway intersection. Crossstreet traffic must turn right and then 

access a U-turn to proceed in the 

desired direction. The actions by the 

Federal agencies, and the laws under 

which such actions were taken, are 

described in the Categorical Exclusion 

(CE) for the project, dated September 

2009, and in other documents in the 

FHWA project records. The CE and 

other documents in the FHWA project 

records file are available by contacting 

the FHWA or the Texas Department of 

Transportation at the addresses 

provided above. This notice applies to 

all Federal agency decisions as of the 

issuance date of this notice and all laws 

under which such actions were taken, 

including but not limited to: 

1. General: National Environmental 

Policy Act (NEPA) [42 U.S.C. 4321– 

4351]; Federal-Aid Highway Act [23 

U.S.C. 109]. 

2. Air: Clean Air Act, 42 U.S.C. 7401– 

7671(q). 

3. Land: Section 4(f) of the 

Department of Transportation Act of 

1966 [49 U.S.C. 303]. 

4. Wildlife: Endangered Species Act 

[16 U.S.C. 1531–1544 and Section 

1536], Migratory Bird Treaty Act [16 

U.S.C. 703–712]. 

5. Historic and Cultural Resources: 

Section 106 of the National Historic 

Preservation Act of 1966, as amended 

[16 U.S.C. 470(f) et seq.]; Archeological 

Resources Protection Act of 1977 [16 

U.S.C. 470(aa)–11]; Archeological and 

Historic Preservation Act [16 U.S.C. 

469–469(c)]. 

6. Social and Economic: Civil Rights 

Act of 1964 [42 U.S.C. 2000(d)– 

2000(d)(1)]; Farmland Protection Policy 

Act (FPPA) [7 U.S.C. 4201–4209]. 

7. Wetlands and Water Resources: 

Clean Water Act, 33 U.S.C. 1251–1377 

(Section 404, Section 401, Section 319). 

8. Executive Orders: E.O. 11990 

Protection of Wetlands; E.O. 11988 

Floodplain Management; E.O. 12898, 

Federal Actions to Address 

Environmental Justice in Minority 

Populations and Low Income 

Populations; E.O. 11593 Protection and 

Enhancement of Cultural Resources; 

E.O. 13175 Consultation and 

Coordination with Indian Tribal 

Governments; E.O. 11514 Protection and 

Enhancement of Environmental Quality; 

E.O. 13112 Invasive Species. 

(Catalog of Federal Domestic Assistance 

Program Number 20.205, Highway Planning 

and Construction. The regulations 

implementing Executive Order 12372 

regarding intergovernmental consultation on 

Federal programs and activities apply to this 

program.) 

Authority: 23 U.S.C. 139(l)(1). 

Issued on: September 30, 2009. 

Salvador Deocampo, 

District Engineer, Austin, Texas. 

[FR Doc. E9–24154 Filed 10–6–09; 8:45 am] 

BILLING CODE 4910–RY–P 

DEPARTMENT OF TRANSPORTATION 

Federal Railroad Administration 

Notice of Funding Availability and 

Solicitation of Applications for Grants 

Under the Railroad Rehabilitation and 

Repair Grant Program 

AGENCY: Federal Railroad 

Administration (FRA), Department of 

Transportation (DOT). 

ACTION: Notice of funding availability; 

solicitation of applications. 

SUMMARY: Under this Notice, the FRA 

encourages interested State departments 

of transportation to submit applications 

for grants to repair and rehabilitate Class 

II and Class III railroad infrastructure 

damaged by hurricanes, floods, and 

other natural disasters in areas for 

which the President declared a major 

disaster after January 1, 2008, under 

Title IV of the Robert T. Stafford 

Disaster Relief and Emergency 

Assistance Act of 1974. 

DATES: FRA will begin accepting grant 

applications 10 days after publication of 

this Notice of Funding Availability in 


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