Safety Standard for Gates and Enclosures, 32346-32356 [2019-14295]

Agencies

• Consumer Product Safety Commission

[Federal Register Volume 84, Number 130 (Monday, July 8, 2019)]
[Proposed Rules]
[Pages 32346-32356]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-14295]


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CONSUMER PRODUCT SAFETY COMMISSION

16 CFR Parts 1112 and 1239

[Docket No. CPSC-2019-0014]


Safety Standard for Gates and Enclosures

AGENCY: Consumer Product Safety Commission.

ACTION: Proposed rule.

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SUMMARY: The Consumer Product Safety Improvement Act of 2008 (CPSIA) 
requires the United States Consumer Product Safety Commission 
(Commission or CPSC) to promulgate consumer product safety standards 
for durable infant or toddler products. Accordingly, the Commission is 
proposing a safety standard for gates and enclosures in response to the 
direction under Section 104(b) of the CPSIA. The Commission is also 
amending its regulations regarding third party conformity assessment 
bodies to include the safety standard for gates and enclosures in the 
list of notice of requirements (NORs) issued by the Commission.

DATES: Submit comments by September 23, 2019.

ADDRESSES: Comments related to the Paperwork Reduction Act aspects of 
the marking, labeling, and instructional literature of the proposed 
rule should be directed to the Office of Information and Regulatory 
Affairs, OMB, Attn: CPSC Desk Officer, FAX: 202-395-6974, or emailed to 
[email protected].
    Other comments, identified by Docket No. CPSC-2019-0014, may be 
submitted electronically or in writing:
    Electronic Submissions: Submit electronic comments to the Federal 
eRulemaking Portal at: https://www.regulations.gov. Follow the 
instructions for submitting comments. The CPSC does not accept comments 
submitted by electronic mail (email), except through 
www.regulations.gov. The CPSC encourages you to submit electronic 
comments by using the Federal eRulemaking Portal, as described above.
    Written Submissions: Submit written submissions in the following 
way: Mail/Hand delivery/Courier (for paper, disk, or CD-ROM 
submissions), preferably in five copies, to: Division of the 
Secretariat, Consumer Product Safety Commission, Room 820, 4330 East 
West Highway, Bethesda, MD 20814; telephone (301) 504-7923.
    Instructions: All submissions received must include the agency name 
and docket number for this proposed rulemaking. All comments received 
may be posted without change, including any personal identifiers, 
contact information, or other personal information provided, to: https://www.regulations.gov. Do not submit confidential business information, 
trade secret information, or other sensitive or protected information 
that you do not want to be available to the public. If furnished at 
all, such information should be submitted in writing.
    Docket: For access to the docket to read background documents or 
comments received, go to: https://www.regulations.gov, and insert the 
docket number, CPSC-2019-0014, into the ``Search'' box, and follow the 
prompts.

FOR FURTHER INFORMATION CONTACT: Hope Nesteruk, Project Manager, 
Directorate for Engineering Sciences, Consumer Product Safety 
Commission, 5 Research Place, Rockville, MD 20850; telephone: 301-987-
2579; email: [email protected].

SUPPLEMENTARY INFORMATION: 

I. Background and Statutory Authority

    Section 104(b) of the CPSIA, part of the Danny Keysar Child Product 
Safety Notification Act, requires the Commission to: (1) examine and 
assess the effectiveness of voluntary consumer product safety standards 
for durable infant or toddler products, in consultation with 
representatives of consumer groups, juvenile product manufacturers, and 
independent child product engineers and experts; and (2) promulgate 
consumer product safety standards for durable infant and toddler 
products. These standards are to be ``substantially the same as'' the 
applicable voluntary standards or more stringent than the voluntary 
standard if the Commision concludes that more stringent requirements 
would further reduce the risk of injury associated with the product. 
The term ``durable infant or toddler product'' is defined in section 
104(f)(1) of the CPSIA as ``a durable product intended for use, or that 
may be reasonably expected to be used, by children under the age of 5 
years.'' ``Gates and other enclosures for confining a child'' are 
specifically identified in section 104(f)(2)(G) of the CPSIA as a 
durable infant or toddler product.
    Pursuant to Section 104(b)(1)(A), the Commission consulted with 
manufacturers, retailers, trade organizations, laboratories, consumer 
advocacy groups, consultants, and members of the public in the 
development of this proposed standard, largely through the ASTM 
process. The proposed rule is based on the voluntary standard developed 
by ASTM International, ASTM F1004-19, Standard Consumer Safety 
Specification for Expansion Gates and Expandable Enclosures (ASTM 
F1004-19). The ASTM standard is copyrighted, but it can be viewed as a 
read-only document during the comment period at: https://www.astm.org/CPSC.htm, by permission of ASTM.

II. Product Description

A. Definition of ``Gates and Other Enclosures''

    ASTM F1004-19 defines an ``expansion gate'' as a ``barrier intended 
to be erected in an opening, such as a doorway, to prevent the passage 
of young children, but which can be removed by older persons who are 
able to operate the locking mechanism'' (section 3.1.7). ASTM F1004-19 
defines an ``expandable enclosure'' as a ``self-supporting barrier 
intended to completely surround an area or play-space within which a 
young child may be confined'' (section 3.1.6). These products are 
intended for young children aged 6 months through 24 months (section 
1.2).
    Although the title of the ASTM F1004-19 standard and its 
definitions include the word ``expansion'' and ``expandable'' before 
the words ``gate'' and ``enclosure,'' respectively, the scope of the 
ASTM F1004-19 standard includes all children's gates and enclosures, 
whether they expand or not. ASTM F1004-19 covers: ``[p]roducts known as 
expansion gates and expandable enclosures, or by any other name,'' 
(section 1.2, emphasis added).\1\ Both expandable gates and non-
expandable gates may serve as barriers that are intended to be erected 
in an opening, such as a doorway, to prevent the passage of young 
children. Both expandable enclosures and non-expandable enclosures may 
serve as barriers intended to completely surround an area or play-space 
to confine young children. Similarly, all children's gates and 
enclosures, whether

[[Page 32347]]

they expand or not, can be removed by older persons who are able to 
operate the locking mechanism.
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    \1\ Gates or enclosures for non-domestic use (such as commercial 
or industrial), and those intended for pets only, are not covered 
under the scope of ASTM F1004-19.
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    CPSC staff's review of enclosures shows that all enclosures are 
expandable. Staff's review of gates showed that there some non-
expandable, fixed-sized gates available for sale.\2\ However, most of 
the gates and enclosures sold in the United States that are intended 
for children expand because they vary in width (for gates) or shape 
(enclosures). CPSC staff's review of hazard patterns indicates that all 
children's gates and enclosures present the same hazards, whether they 
expand or not. These hazards include injuries caused by hardware-
related issues, slat problems, poor quality materials and finish, 
design issues, and installation problems. Accordingly, the proposed 
CPSC standard addresses all children's gates and enclosures intended 
for confining a child, including non-expandable, fixed-sized gates and 
enclosures.
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    \2\ The vast majority of non-expandable, fixed-size gates are 
sold by home-based manufacturers with very low sales volumes.
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    Gates and enclosures may be made of a wide range of materials: 
plastic, metal, wood, cloth, mesh, or combinations of several 
materials. Gates typically have a means of egress that allows adults to 
pass through them; but some enclosures (i.e., some self-supporting 
barriers have egress panels that resemble gates) also have a means of 
egress. Gates may be hardware-mounted, pressure-mounted, or both. 
Hardware-mounted gates generally require screws and cannot be removed 
without tools. Pressure-mounted gates attach like a pressure-fit 
curtain rod, using pressure on each end to hold the gate stable; they 
are intended for consumers who prefer to be able to move their gate, or 
who do not want to permanently mark their walls. Mounting cups can be 
attached to one or more locations, and the gate can be removed, as 
needed, or moved to other locations.

B. Market Description

    Approximately 113 firms supply gates and enclosures to the U.S. 
market. The vast majority of suppliers to the U.S. market are domestic 
(109 firms). Of these, 83 appear to be very small, home-based domestic 
manufacturers. Approximately 10.86 million gates/enclosures were in use 
in U.S. households with children under the age of 5 in 2013, according 
to the CPSC's 2013 Durable Nursery Product Exposure Survey (DNPES).
    Gates and enclosures vary widely in price. Plastic pressure gates 
can be purchased for as little as $10, but designer metal gates can 
cost as much as $430. Retail prices for enclosures and products that 
can operate either as an enclosure or gate range from $74 to $585, with 
the less expensive products tending to be made of plastic, and the more 
expensive products tending to be made of wood.\3\ Gates supplied by 
home-based manufacturers average $200, although fabric gates are less 
expensive ($44 on average), and wooden gates with iron spindles are 
more expensive ($525 on average).
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    \3\ Some of the enclosures designed for daycare centers and 
preschools can run above $1,000 with all the specialty extensions.
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III. Incident Data

    CPSC staff reviewed incident data associated with children's gates 
and enclosures as reported through the Consumer Product Safety Risk 
Management System (CPSRMS).\4\ Staff also reviewed national injury 
estimates, discussed below. Although these products are intended for 
use with young children between the ages of 6 months and 24 months, 
interaction with the gates and enclosures with older siblings and adult 
caregivers is a foreseeable use pattern, and adults are required to 
install such products properly to prevent injuries. CPSC staff reviewed 
the incident data involving older children and adults to determine 
hazard patterns; however, only injuries sustained by children younger 
than 5 years of age were included in the incident data reported for the 
proposed rule. The Commission is aware of a total of 436 reported 
incidents related to gates and enclosures that occurred between January 
1, 2008 and October 31, 2018. Of the 436 incidents, 394 were associated 
with the use of a gate, while 42 were associated with an enclosure. 
Nineteen of the incidents reported a fatality; 108 of the 417 nonfatal 
incidents reported an injury. Because reporting is ongoing, the number 
of reported fatalities, nonfatal injuries, and non-injury incidents may 
change in the future.
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    \4\ The CPSC databases searched were the In-Depth Investigation 
(INDP) file, the Injury or Potential Injury Incident (IPII) file, 
and the Death Certificates (DTHS) file. These reported deaths and 
incidents are neither a complete count of all that occurred during 
this time period nor a sample of known probability of selection. 
However, they do provide a minimum number of deaths and incidents 
occurring during this time period and illustrate the circumstances 
involved in the incidents related to children's gates and 
enclosures.
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A. Fatalities

    The Commission is aware of 19 deaths that occurred between January 
1, 2008 and October 31, 2018. Seventeen of the deaths were associated 
with the use of a gate, while two were associated with an enclosure. 
Fifteen of the 19 decedents drowned, 13 in a backyard pool, one in a 
backyard hot tub, and one in a 5-gallon bucket of water inside the 
house. In these incidents, the decedents managed to get past the gate/
enclosure when it was left open or was opened somehow, without the 
caregiver's knowledge (10 incidents); the gate/enclosure was knocked 
down or pushed out by the decedent due to incorrect or unsecured 
installation (4 incidents); or the decedent climbed over the gate/
enclosure (1 incident). The decedents ranged in age from 9 months to 3 
years.
    Of the remaining four of 19 total deaths reported: An 8-month-old 
was found trapped between a mattress and an expansion gate in a 
recreational vehicle; a 23-month-old was trapped under a TV that fell 
on him when he was hanging on the edge of a safety gate that was 
secured to the TV stand with a rope; a 20-month-old was entrapped 
between a wall and a repaired/modified safety gate when the gate 
partially detached from the wall; and a 2-year-old got his neck 
entrapped between two safety gates set up in a stacked configuration.

B. Nonfatalities

    The Commission is aware of a total of 417 nonfatal incidents 
related to safety gates and enclosures that reportedly occurred between 
January 1, 2008 and October 31, 2018. Of these, 108 incidents reported 
an injury to a child younger than 5 years of age.
    Three of the injuries reportedly required hospitalization and two 
additional injuries needed overnight observation at a hospital. Among 
the hospitalized were a 2-year-old and an 18-month-old, both suffered a 
near-drowning episode, and another 2-year-old who ended up in a coma 
due to a fall when she pushed through a safety gate at the top of 
stairs. Of the two children who were held at a hospital for overnight 
observation, one fell down stairs when a safety gate collapsed, and the 
other swallowed a bolt or screw that liberated from a gate.
    Fifteen additional children were reported to have been treated and 
released from a hospital emergency department (ED). Their injuries 
included: (a) finger fractures, amputations, and/or lacerations usually 
from a finger getting caught at the hinge; and (b) near-drowning, 
poison ingestion, arm fracture, thermal burn, head injury, or 
contusions.
    Among the remaining injury reports, some specifically mentioned the 
type of injury, while others only mentioned an injury, but no specifics 
about the injury.

[[Page 32348]]

Head injuries, concussions, teeth avulsions, sprains, abrasions, 
contusions, and lacerations were some of the common injuries reported.
    The remaining 309 incidents reported that no injury had occurred or 
provided no information about any injury. However, some of the 
descriptions regarding the incidents indicated the potential for a 
serious injury or even death.

C. National Injury Estimates

    CPSC staff also reviewed injury estimates from the National 
Electronic Injury Surveillance System (NEISS), a statistically valid 
injury surveillance system.\5\ NEISS injury data are gathered from EDs 
of hospitals selected as a probability sample of all the U.S. hospitals 
with EDs. CPSC staff found an estimated total of 22,840 injuries 
(sample size=820, coefficient of variation=0.10) related to children's 
gates and enclosures that were treated in U.S. hospital EDs over the 
10-year period 2008-2017. There was no statistically significant trend 
observed over the entire 2008-2017 period. NEISS data for 2018 will be 
reviewed prior to the issuance of a final rule.
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    \5\ According to the NEISS publication criteria, to derive a 
reportable national estimate, an estimate must be 1,200 or greater, 
the sample size must be 20 or greater, and the coefficient of 
variation must be 33 percent or smaller.
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    No fatalities were reported through NEISS. About 19 percent of the 
injured victims were less than a year old; 40 percent were at least a 
year old, but less than 2 years of age; and another 41 percent were at 
least 2, but less than 5 years of age. NEISS injury descriptions are 
brief and focus more on the injury than the scenario-specific details. 
Therefore, a detailed hazard pattern characterization, as conducted for 
incidents reported through CPSRMS, is not feasible. However, based on 
the limited information available, CPSC staff determined that some of 
the most frequent NEISS injury characteristics were as follows:
     Hazard--falls (57%) and impact on gate/enclosure (31%). 
Most of the falls occurred when:
    [cir] A child successfully climbed over the barrier and (usually) 
fell down a flight of steps; when a child unsuccessfully attempted to 
climb over the barrier; or a child-carrying-adult tripped on a gate/
enclosure and dropped the child;
    [cir] gates failed to remain upright and locked; or
    [cir] a child managed to defeat the barrier by crawling/sliding 
under, or ``getting around'' the barrier in an unspecified manner.
     Injury--almost 10 percent of the impact injuries occurred 
when a child fell down a flight of steps and hit a safety gate at the 
bottom of the stairs:
    [cir] Injured body part--head (40%), face (21%), and mouth (10%).
    [cir] Injury type--lacerations (28%), internal organ injury (23%), 
and contusions/abrasions (20%).
    Most of the injured victims were treated and released (97%).

IV. Hazard Pattern Identification

    CPSC staff reviewed 436 reported incidents (19 fatal and 417 
nonfatal) to identify hazard patterns associated with the use of 
children's gates and enclosures. Staff grouped the hazard patterns into 
three categories: Product-related, non-product-related, and 
undetermined. Most of the reported problems (94%) were product-related. 
The categories and subcategories (in order of descending frequency) 
are:

A. Product-Related

     Hardware issues: Of the 436 incidents, 163 (37%) reported 
some sort of hardware-related problems. These problems were due to:
    [cir] lock/latch hardware (e.g., lock or latch breaking, not 
latching correctly, opening too easily, or getting stuck)
    [cir] hinge hardware (mostly breaking and causing the gate to fall 
off)
    [cir] mounting hardware (mostly breaking and causing gate to fall 
off), or
    [cir] other hardware such as a slide guide or a swing-control clip 
(breaking or coming loose).

These hardware failures were associated with 38 injuries, such as 
contusions, lacerations, head injuries, and two fractures; five of the 
injuries were treated in a hospital ED, and one needed overnight 
observation at a hospital.
     Slat problems: Of the 436 incidents, 107 (25%) reported 
slats breaking or detaching from the safety gate or enclosure. Sixteen 
injuries were reported in this category, resulting in contusions/
abrasions or lacerations. Once the slat(s) broke, the child either got 
injured on it, fell forward through the gap created, or lost balance 
and fell backwards. One of the injuries was treated at a hospital ED.
     Poor quality material and finish: Of the 436 incidents, 50 
(11%) reported problems with small parts liberating, splintered 
welding, sharp edges and protrusions, rails bending out of shape, 
fabric/mesh panels sagging, and poor quality of stitching on fabric 
panels. Eighteen injuries, mostly lacerations and abrasions, were 
reported in this category.
     Design issues: Of the 436 incident reports, 42 (10%) 
indicated some problems with the design of the gate or enclosure. The 
reported problems were with:
    [cir] The opening size between slats or enclosure panels that 
allowed a child to get their limbs or head entrapped;
    [cir] the pinch-point created during the opening and closing action 
of the door on the gate or enclosure;
    [cir] a specific design, which created a foot-hold that a child 
could use to climb over the safety gate; or
    [cir] a specific design that posed a trip hazard when the gate was 
in the open position.

Nineteen injuries were in this category, including three fractures of 
the finger and one severed fingertip, all treated at a hospital ED.
     Installation problems: Of the 436 incident reports, 20 
(5%) indicated problems with installation due to:
    [cir] unclear installation instructions;
    [cir] mismatched dimensions between the safety gate and the 
doorway/hallway opening; or
    [cir] unknown reasons; in these cases, the gate/enclosure was 
reported to have been installed, but was somehow ``pushed out'' or 
``pulled down.''

Four drowning fatalities were reported in this category. In addition, 
there were four nonfatal injuries: One a hospitalization of a comatose 
child; another child treated and released from a hospital ED following 
a near-drowning episode; and the remaining two, relatively minor 
laceration/contusion injuries.
     Miscellaneous other issues and consumer comments: Seven of 
the 436 incident reports (2%) included three complaints about an 
ineffective recall remedy, one complaint about poor product packaging, 
and three consumer concerns about the safety of a specific design. 
There was one unspecified injury in this category.
     Instability issues in enclosures: Three of the 436 
incidents (<1%) reported problems with flimsy and/or unstable 
enclosures. Two laceration/contusion injuries were reported in this 
category.
     Multiple problems from among the above: Twenty of the 436 
incident reports (5%) described two or more problems from the preceding 
product-related issues. Two minor injuries were reported in this 
category.\6\
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    \6\ Redistributing these 20 complaints among the other pertinent 
subcategories within the product-related issues does not alter the 
ranking of the listed subcategories. However, the redistribution 
would result in the within-subcategory incident numbers adding up to 
more than the total number of incident reports. To prevent that, the 
20 incidents were grouped in a separate subcategory.

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[[Page 32349]]

B. Non-Product-Related

    Eleven of the 436 incident reports (3%) described non-product-
related issues, such as incorrect use of the product, or the child 
managing to bypass the barrier altogether. Specifically:
     Four incidents reported the child climbing over the gate/
enclosure;
     Three incidents reported caregiver missteps allowing the 
gate/enclosure not to be secured in place;
     Three incidents reported misuse of gates in a hazardous 
manner; and
     One report involving a gate previously repaired/modified 
and structurally compromised.

Eight deaths are included in this category: Four due to drowning, three 
due to entrapments, and one due to a TV tip over. Among the three 
injuries, one required hospitalization following a near-drowning 
episode, and one fractured arm was treated at a hospital ED; the third 
injury was a concussion of the forehead.

C. Undetermined

    Thirteen of the 436 incident reports (3%) fell into the 
undetermined category. There was insufficient information on the 
scenario-specific details for CPSC staff to determine definitively 
whether the product failed or user error resulted in the incidents. 
Seven drowning deaths were reported in this category. Among the five 
nonfatal injuries, one was a hospitalization due to near-drowning, two 
were treated at a hospital ED for poisonous ingestion and burn, 
respectively, and two were minor injuries.

D. Product Recalls

    CPSC staff reviewed recalls involving children's gates and 
enclosures from January 2008 to December 2018. During that period, 
there were five recalls involving baby gates and one recall involving 
an enclosure. The total number of units recalled was 1,318,180. The 
recalls involved fall, entrapment, tripping, and laceration hazards to 
children. There were a total of 215 incidents reported, of which 13 
resulted in injuries.

V. Voluntary Standard--ASTM F1004

A. History of ASTM F1004

    The voluntary standard for gates and enclosures was first approved 
and published in 1986 (ASTM F1004-86, Standard Consumer Safety 
Specification for First-Generation Standard Expansion Gates and 
Expandable Enclosures). Between 1986 and 2013, ASTM F1004 underwent a 
series of revisions to improve the safety of gates and enclosures and 
the clarity of the standard. Revisions made during this period included 
provisions to address foot-pedal actuated opening systems, warnings, 
evaluation of all manufacturer's recommended use positions, test 
fixture improvements, entrapment in openings along the side of the 
gate, lead-containing substances in surface, along with other minor 
clarifications and editorial corrections.
    Beginning in 2014, CPSC staff worked closely with ASTM to address 
identified hazards and to strengthen the voluntary standard and improve 
the safety of children's gates and enclosures in the U.S. market. ASTM 
made revisions through several versions of the standard (ASTM F1004-15, 
ASTM F004-15a, ASTM F1004-16, ASTM F1004-16a, ASTM F1004-16b, and ASTM 
F1004-18) to address hazards associated with bounded openings, slat 
breakage/slat connection failures, mounting/hinge hardware issues, 
latch/lock failures, pressure gate push-out forces, and warning labels 
and instructions. The current voluntary standard is ASTM F1004-19, 
which was approved on June 1, 2019.

B. Description of the Current Voluntary Standard--ASTM F1004-19

    ASTM F1004-19 includes the following key provisions: Scope (section 
1), Terminology (section 3), General Requirements (section 5), 
Perfomance Requirements (section 6), Test Methods (section 7), Marking 
and Labeling (section 8), and Instructional Literature (section 9).
    Scope. This section states the scope of the standard, and includes 
products known as expansion gates and expandable enclosures, or by any 
other name, and that are intended for young children age 6 months 
through 24 months. ASTM has stated that the standard applies to all 
children's gates, including non-expandable, fixed-sized gates and 
enclosures.
    Terminology. This section provides definitions of terms specific to 
the standard.
    General Requirements. This section addresses numerous hazards with 
several general requirements, most of which are also found in the other 
ASTM juvenile product standards. ASTM F1004-19 has requirements to 
address the following safety issues common to many juvenile products. 
The general requirements included in this section address:
     Wood parts;
     Screws;
     Sharp edges or points;
     Small parts;
     Openings;
     Exposed coil springs;
     Scissoring, shearing, and pinching;
     Labeling;
     Lead in paint; and
     Protective components.
    Performance Requirements and Test Methods. These sections contain 
performance requirements specific to children's gates and enclosures 
and the test methods that must be used to assess conformity with such 
requirements. These requirements include:
     Completely bounded openings: Openings within the gate or 
enclosure, and completely bounded openings between the gate and the 
test fixture, shall not permit the complete passage of the small torso 
probe when it is pushed into the opening with a 25-pound force. This 
requirement is intended to address incidents where children were found 
with their heads entrapped after having pushed their way into gaps 
created between soft or flexible gate and enclosure components, and 
between the gate and the sides of passageway to be blocked off, e.g., 
door frame or wall.
     Height of sides: The vertical distance from the floor to 
the lowest point of the uppermost surface shall not be less than 22 
inches when measured from the floor. The requirement is intended to 
prevent intended occupants from being able to lean over, and then 
tumble over the top of the gate.
     Vertical strength: After a 45-pound force is exerted 
downward along the uppermost top rail, edge, or framing component, 
gates and enclosures must not fracture, disengage, fold nor have a 
deflection that leaves the lowest point of the top rail below 22 inches 
from the ground. For gates, the 45-pound vertical test force is applied 
five times to the mid-point of the horizontal top rail, surface or edge 
of each gate (or each of the top points of a gate that doesn't have a 
horizontal top edge). This test is carried out with the gate installed 
at both the maximum and minimum opening widths recommended by the 
manufacturer. For enclosures, the 45-pound force is applied to every 
other uppermost rail, surface, or edge and every other top joint of the 
enclosure. This requirement is intended to check that gates and 
enclosures retain their intended occupants even when children hang from 
or attempt to climb up the gates.
     Bottom spacing: The space between the floor and the bottom 
edge of an enclosure or gate shall not permit the complete passage of 
the small torso probe when it is pushed into the opening with a 25-
pound force. This requirement is intended to address incidents where 
children were found with their heads entrapped after having

[[Page 32350]]

pushed their way, feet first, into gaps created between the gate and 
the floor.
     Configuration of uppermost edge: Partially bounded 
openings at any point in the uppermost edge of a gate or enclosure that 
is greater than 1.5 inches in width and more than 0.64 inches in depth 
must not allow simultaneous contact between more than one surface on 
opposite sides of a specified test template. The template was 
dimensioned so as to screen out non-hazardous openings with angles that 
are either too narrow to admit the smallest user's neck, or too wide to 
entrap the largest user's head. This requirement is intended to address 
head/neck entrapment incidents reported in the ``V'' shaped openings 
common in older, ``accordion style'' gates.
     Latching/locking and hinge mechanisms: This hardware 
durability test requires egress panels on gates and enclosures to be 
cycled through their fully open and closed positions 2,000 times. 
Pressure gates without egress panels are cycled through installation 
and removal 550 times. The 2,000 cycles tests the durability of gates 
or enclosures having egress panels which are expected to be operated 
twice a day through the lifetime of the product. Pressure gates without 
egress panels are intended to be installed in locations not accessed as 
frequently, and thus, are tested through a reduced 550 cycle test. This 
pre-conditioning test is intended to address incidents involving 
failures of latches, hinges, and hardware.
     Automatic closing system: Immediately following the cyclic 
preconditioning test, an egress panel marketed to have an automatic 
closing feature must continue to automatically close when opened to a 
width of 8 inches as well as when it is opened to its maximum opening 
width. This requirement is intended to check that a gate fully closes 
and locks as it is expected and advertised to do, thereby reducing the 
likelihood of an occupant accessing potentially hazardous conditions on 
the other side of an unintentionally unsecured gate.
     Push-out force strength: Five test locations are specified 
for this test: the four corners of the gate as well as the center. A 
horizontal push-out force is applied five times to each of the test 
locations and the maximum force applied before the gate pushes out of 
the test fixture is recorded and averaged for each test location (up to 
a maximum of 45 lb). The maximum force of 45 lb was selected because it 
simulates the effects of the largest intended occupant's weight. The 
average push-out force shall exceed 30 lb in all five test locations 
(and each individual force shall exceed 20 lb.) This requirement is 
intended to prevent the intended occupant from being able to dislodge 
the gate and gain access to a hazardous area the gate was meant to 
protect them from.
     Locking devices: Locking devices shall meet one of two 
conditions: (1) If the lock is a single-action latching device, the 
release mechanism must require a minimum force of 10 lb to activate and 
open the gate, or else (2) the lock must have a double action release 
mechanism. This requirement is intended to prevent the intended 
occupant being contained by the gate from being able to operate the 
locking mechanism.
     Toys: Toy accessories shall not be attached to, or sold 
with, a gate. Toy accessories attached to, removable from, or sold with 
an enclosure, shall meet applicable requirements of specification ASTM 
F963 ``Consumer Safety Specification for Toy Safety.''
     Slat Strength: This test verifies that no wood or metal 
vertical members (slats) completely break or either end of the slats 
completely separate from the gate or enclosure when a force of 45 
pounds is applied horizontally. The test is conducted on 25 percent of 
all gate slats, excluding adjacent slats. This requirement is intended 
to check that gates and enclosures retain their structural integrity 
when children push or pull on the gate or enclosure slats.
     Label testing: Paper and non-paper labels (excluding 
labels attached by a seam) shall not liberate without the aid of tools 
or solvents. Paper or non-paper attached by a seam shall not liberate 
when subjected to a 15-lb pull force.
    Warning, Labeling and Instructions. These provisions specify the 
marking, labeling and instructional literature requirements that must 
appear on or with each gate or enclosure.
     All gates and enclosures must include warnings on the 
product about the risk of serious injury or death when a product is not 
securely installed, must warn the consumer to never use the gate with a 
child who is able to climb over or dislodge the gate, and to never use 
the gate to prevent access to a pool.
     Pressure-mounted gates with a single-action locking 
mechanism on one side of the gate must include the following warning: 
Install with this side AWAY from child.
     Enclosures with locking or latching mechanisms must 
include the following warnings: Use only with the [locking/latching] 
mechanism securely engaged.
     Gates that do not pass the push-out test requirements must 
include the following warning on the product: You MUST install [wall 
cups] to keep gate in place. Without [wall cups] child can push out and 
escape.
    These warnings are also required on the retail packaging unless 
they are visible in their entirety to consumers on the gate or 
enclosure at point of purchase.

VI. Adequacy of ASTM F1004-19 Requirements

    The Commission concludes that the current voluntary standard, ASTM 
F1004-19, sufficiently addresses many of the general hazards associated 
with the use of children's gates and enclosures, such as wood parts, 
sharp points, small parts, lead in paint, scissoring, shearing, 
pinching, openings, exposed coil springs, locking and latching, and 
protective components.
    In addition to the general requirements, ASTM F1004-19 contains 
performance requirements and test methods specific to gates and 
enclosures. The Commission determines that the current voluntary 
standard addresses the primary hazard patterns identified in the 
incident data. This section discusses the hazard patterns that account 
for the reported incidents and injuries and how the current voluntary 
standard addresses each. To assess the adequacy of ASTM F1004-19, CPSC 
staff considered all 436 reported incidents (19 fatal and 417 nonfatal) 
to identify hazard patterns associated with children's gates and 
enclosures.

A. Hardware Issues

    This hazard is associated with 163 incidents (37%). The CPSC 
incident data show that hardware failures, (e.g., broken hinges, locks, 
and mounting brackets) led to contusions, lacerations, head injuries, 
and fractures. To identify gates and enclosures that have hardware 
issues, such as those found in the incident data, ASTM F1004-19 
provides a latching/locking and hinge performance test that cycles 
gates through 2,000 complete ``open and closing'' cycles and 550 
installation/removal cycles for pressure gates without egress panels. 
The Commission concludes that this performance requirement adequately 
addresses the hazard pattern associated with hardware failures.

B. Slat Problems

    This hazard is associated with 107 incidents (25%). The CPSC 
incident data show that problems occurred when slats broke or detached 
from gates or enclosures, resulting in contusions and lacerations. The 
ASTM F1004-19 standard includes a performance requirement that slats 
must withstand a 45-pound force, which is the pulling

[[Page 32351]]

force of the largest intended occupant. The Commission concludes that 
this performance requirement adequately addresses the hazard pattern 
associated with slat failures.

C. Material and Finish

    This hazard is associated with 50 incident reports (11%). The CPSC 
incident data show that problems occurred with small parts breaking 
free to become potential choking hazards; splintering wood, or welding, 
sharp edges, protrusions, rails bending out of shape; fabric/mesh 
panels sagging, and poor quality stitching on fabric panels. ASTM 
F1004-19 (General Requirements) contains many requirements that address 
these issues, such as sharp points or edge, small parts, and bans on 
the use of transverse/lateral joints in all wood components. ASTM 
F1004-19 also tests openings within gates or enclosures and completely 
bounded openings, as well as bottom spacing between the bottom of the 
gate or enclosure and the floor, which also help reduce issues with 
rails or flexible barrier materials bending out of shape. The 
Commission concludes that these performance requirements adequately 
address the hazard pattern associated with material and finish 
failures.

D. Design Issues

    This hazard is associated with 42 incident reports (10%). The CPSC 
incident data show that problems occurred when an aspect of the design 
of the gate or enclosure failed, such as the opening size between slats 
or panels that allowed for entrapments, moving gate components causing 
scissoring or pinching issues, features that were able to be used as 
footholds, or sections that posed a trip hazard when the gate was in an 
opened position. ASTM F1004-19 contains several performance tests that 
specifically address entrapments in openings, including the completely 
bounded openings and bottom spacing tests. The general openings and 
scissoring, shearing, and pinching performance requirements also help 
address hazards related to openings. The Commission concludes that 
these performance requirements adequately address the hazard pattern 
associated with design issues.

E. Installation Problems

    This hazard is associated with 20 incidents (5%). The CPSC incident 
data show that problems occurred when there were unclear instructions, 
mismatched dimensions between gates and the openings they were meant to 
fit into, and failure of the gate to remain upright in the opening. 
ASTM F1004-19 includes several provisions requiring that warnings, 
labeling, and instructions be easy to read and understand for proper 
installation of gates. In addition, ASTM F1004-19 provides that all 
gates must meet a 30 lbs of push-out force at five test locations.
    The Commission agrees that the requirement to meet the 30-lb push-
out force for all gates will improve children's safety, if the gate is 
installed correctly. The ASTM F1004-19 standard allows the use of 
mounting hardware or wall cups to meet the 30-lb push-out force 
requirement. Although the Commission determines that these provisions 
generally address the installation hazard patterns because they help 
clarify the requirements for proper installation, ASTM may be able to 
make improvements in the future to increase the consumer's awareness of 
the importance of proper installation of pressure-mounted gates.
    Currently, the ASTM standard does not require pressure-mounted 
gates to provide the consumer with reliable feedback indicating that 
the gate has been installed correctly with enough side pressure to 
prevent a child from knocking it over. Manufacturers' instructions for 
some pressure-mounted gates provide little or no clear direction for 
consumers to know when the gate is installed correctly or will stay in 
place after several uses. Some of the designs require the user to push 
or pull on the gate to have a feel that the gate is properly installed 
(e.g. ``turn the nut . . . until the gate is snug''; ``turn the hand 
wheels until firm tension is achieved''); or make precise measurements 
for installation (e.g., the distance between the gate frame and the 
wall to ensure both sides are equally spaced). These tasks are often 
subjective or cumbersome to guarantee proper installation.
    CPSC staff intends to collaborate with ASTM in the future to 
improve the installation of pressure-mounted gates with the use of 
visual side-pressure indicators. Because pressure-mounted gates rely on 
friction force to resist a push-out force applied to the gate, side-
pressure force is a key component to the gate performance. The more 
side-pressure force exerted by the gate to the wall/door opening, the 
more resistance to push-out forces. Effective visual side-pressure 
indicators would make it more likely that test technicians install the 
gate with sufficient side-force pressure and could provide consistency 
and validity to the test results. Equally important, visual side-
pressure indicators could provide a way for consumers to know when 
their gate is installed with sufficient side pressure, particularly as 
they are not expected to have or use force gauges during installation. 
Visual indicators may also help inform consumers during the lifecycle 
of the product, when readjustment is necessary. Accordingly, the 
Commission seeks comment regarding the use and feasibility of visual 
side pressure indicators for pressure-mounted gates and whether such 
indicators would be effective in addressing installation failures.

F. Miscellaneous

    Seven of the incidents (2%) raised miscellaneous issues, including 
three complaints about an ineffective recall remedy, one complaint 
about poor product packaging, and three consumer concerns about the 
safety of a specific design. The issues are not addressed in ASTM 1004-
19, but they do not relate directly to improving the safety of gates or 
enclosures. Accordingly, the Commission does not recommend changes to 
the ASTM standard to address these issues.

G. Enclosure Instability

    A few (<1%) incident reports came from consumers who described 
problems with flimsy or unstable enclosures. ASTM F1004-19 contains 
several requirements that help address the product durability issues 
reported in these enclosure incidents. The vertical strength 
requirement was expanded to test not only the joints between the 
enclosure panels, but also to test the top rails of the panels 
themselves. Additionally, the cyclic locking/latching tests whether the 
hardware in these products is durable and capable of withstanding 
regular use. Many of the general requirements, such as those concerning 
sharp edges, small parts, wood parts, and protective components, also 
help to address issues in this category. The Commission concludes that 
these performance requirements are adequate to address the hazard 
pattern associated with unstable enclosures.

H. Warnings and Instructional Literature

    ASTM F1004-19 includes updated warning format requirements that are 
aligned with ASTM's Ad Hoc Wording Task Group recommendations. The Ad 
Hoc Task Group harmonized the wording and language used across nursery 
product standards. This task group also developed recommendations for 
harmonizing warning formats across standards. CPSC staff has worked 
closely with this group to develop ad hoc recommendations that are 
based largely on the requirements of the ANSI

[[Page 32352]]

Z535.4, American National Standard for Product Safety Signs and Labels.
    The Commission expects that the ASTM F1004-19's labeling 
requirements will reduce inconsistencies currently seen on gates and 
enclosures, and will address numerous warning format issues to capture 
consumer attention better, improve readability, and increase hazard 
perception and avoidance behavior. In addition, the Commission 
determines that the instructional literature, also aligned with the Ad 
Hoc Task Group's wording design or form requirements, improves the 
required warning statements in the instructions. However, the 
Commission believes that additional collaboration with ASTM regarding 
the placement and wording of the warning label on gates for wall cups 
on pressure-mounted gates may improve consumers' awareness of the 
importance of proper wall cup installation.
    ASTM F1004-19 currently requires a warning statement about the 
hazard of installing gates without wall cups. This warning statement is 
included within the general warning label; however, the label can have 
as many as six different required messages in one location:
[GRAPHIC] [TIFF OMITTED] TP08JY19.005

    As discussed, there is no objective measure for consumers to 
confirm the correct installation of the gate. CPSC staff intends to 
work with ASTM to improve the installation of pressure-mounted gates 
with the use of visual side-pressure indicators to provide an objective 
way for test technicians and consumers to know when their gate is 
installed with sufficient side pressure. In addition, although some 
pressure-gate manufacturers generally instruct consumers that wall cups 
are required if they need to install a pressure-mounted gate at the top 
of the stairs, consumers may not be aware that wall cups need to be 
installed if the gate is used in other locations, or that wall cups 
need to be reinstalled if the gate is moved to a different location. 
Additional collaboration with ASTM is needed to assess whether a wall 
cup warning label statement that is separate and distinct from the 
general warning label, and placed conspicuously on the top rail of the 
gate, may increase the likelihood of the consumer noticing, 
comprehending, and complying with the warning. Accordingly, the 
Commission seeks comment on whether the placement and wording of the 
wall cup warning should be modified, and whether such changes would be 
effective in addressing installation failures.

VII. International Standards

    CPSC staff reviewed the performance requirements of the current 
ASTM standard, ASTM F1004-19, to the performance requirements of other 
standards that address children's gates and enclosures including:
     The European Standard, EN 1930:2011/A1, Child use and care 
articles--Safety barriers--Safety requirements and test methods (EN 
standard); and
     The Canadian regulation, SOR/2016-179, Expansion Gates and 
Expandable Enclosures Regulations (SOR standard).
    CPSC staff determined that, for most of the relevant performance 
requirements, the SOR standard refers to an older version of ASTM 
F1004, published in 1986 (ASTM F1004-86), which has been superseded. 
Staff compared the applicable performance requirements of the SOR 
standard and EN standard to the current ASTM F1004 standard, ASTM 
F1004-19, including the following requirements: Side height and 
vertical load, footholds, head entrapment, latch/oock conditioning test 
and automatic closing system, scissoring, shearing, and pinching, 
entanglement by protruding parts, neck entrapment in V shaped opening, 
packaging, construction and structural integrity, push-out test, 
hazardous materials, flammability, and protective components. CPSC 
staff's review showed that, for all of the requirements, the current 
ASTM F1004-19 standard is adequate, or more stringent than, the 
international standards in addressing the hazards identified in 
incidents associated with children's gates and enclosures.

VIII. Incorporation by Reference

    The Commission is proposing to incorporate by reference, ASTM 
F1004-19, without change. The Office of the Federal Register (OFR) has 
regulations concerning incorporation by reference. 1 CFR part 51. These 
regulations require that, for a proposed rule, agencies discuss in the 
preamble to the NPR ways that the materials the agency proposes to 
incorporate by reference are reasonably available to interested 
persons, or explain how the agency worked to make the materials 
reasonably available. In addition, the preamble to the proposed rule 
must summarize the material. 1 CFR 51.5(a).
    In accordance with the OFR's requirements, section V.B of this 
preamble summarizes the provisions of ASTM F1004-19 that the Commission 
proposes to incorporate by reference. ASTM F1004-19 is copyrighted. By 
permission of ASTM, the standard can be viewed as a read-only document 
during the comment period on this NPR, at: https://www.astm.org/cpsc.htm. Interested persons may also purchase a copy of ASTM F1004-19 
from ASTM, through its website (https://www.astm.org), or by mail from 
ASTM International, 100 Bar Harbor Drive, P.O. Box 0700, West 
Conshohocken, PA 19428; https://www.astm.org.

[[Page 32353]]

Alternatively, interested parties may inspect a copy of the standard at 
CPSC's Division of the Secretariat.

IX. Effective Date

    The Administrative Procedure Act (APA) generally requires that the 
effective date of a rule be at least 30 days after publication of the 
final rule (5 U.S.C 553(d)). The Commission proposes that the standard 
become effective 6 months after publication of a final rule in the 
Federal Register. Barring evidence to the contrary, the Commission 
generally considers 6 months to be sufficient time for suppliers to 
come into compliance with a new standard, and this is typical for other 
CPSIA section 104 rules. Six months is also the period that the 
Juvenile Products Manufacturers Association (JPMA) typically allows for 
products in their certification program to shift to a new standard once 
that new standard is published. The Commission is not aware of any 
information suggesting that 6 months is not an appropriate time frame 
for suppliers to come into compliance. Therefore, juvenile product 
manufacturers are accustomed to adjusting to new standards within this 
time frame. The Commission believes that most firms should be able to 
comply with the 6-month time frame, but asks for comments, particularly 
from small businesses, regarding the feasibility of complying with the 
proposed 6-month effective date. We also propose a 6-month effective 
date to the amendment to part 1112.

X. Assessment of Small Business Impact

A. Introduction

    The Regulatory Flexibility Act (RFA) requires that proposed rules 
be reviewed for their potential economic impact on small entities, 
including small businesses. Section 603 of the RFA requires that 
agencies prepare an initial regulatory flexibility analysis (IRFA) and 
make it available to the public for comment when the general notice of 
proposed rulemaking (NPR) is published, unless the head of the agency 
certifies that the rule will not have a significant economic impact on 
a substantial number of small entities. Based on current information, 
the Commission cannot rule out that incorporating by reference ASTM 
F1004-19 as a mandatory CPSC safety standard would have a significant 
impact on a substantial number of small entities involved in the 
manufacturing or importing of children's gates and enclosures,

B. Small Entities to Which the Proposed Rule Would Apply

    CPSC staff identified 113 firms supplying gates and enclosures to 
the U.S. market. The vast majority of suppliers are domestic (109 
firms). The U.S. Small Business Administration (SBA) size guidelines 
identify any manufacturer as ``small'' if it employs fewer than 500 
employees. Out of 113 firms, 83 appear to be very small, home-based 
domestic manufacturers.\7\ They typically have only one or two gates in 
their product line and supply few other products. They generally also 
have low sales volumes. None of the home-based manufacturers appears to 
supply enclosures.
---------------------------------------------------------------------------

    \7\ These suppliers were identified online, and staff believes 
that there may be additional home-based suppliers operating in the 
gates market on a very small scale (possibly including some without 
an online presence).
---------------------------------------------------------------------------

    An additional 30 firms that are larger than the home-based 
suppliers supply gates and/or enclosures; 26 of the 30 are domestic. 
These firms include manufacturers and importers. Twenty-three of the 30 
firms, although not as small as the home-based suppliers, are still 
small domestic entities, based on SBA guidelines for the number of 
employees in their North American Industry Classification System 
(NAICS) codes. These firms typically have eight to nine gate models in 
their product lines and have much larger sales volumes than the home-
based suppliers. Of the 23 small domestic suppliers, 13 supply only 
gates, six supply only enclosures, and four firms supply gates and 
enclosures. The remaining four firms are foreign manufacturers.

C. Costs of Proposed Rule To Be Incurred by Small Manufacturers

    CPSC staff is aware of 106 small, domestic firms currently 
marketing gates and enclosures in the United States. It appears 
unlikely that there would be a significant economic impact on the 17 
suppliers (12 manufacturers and 5 importers) of compliant gates and 
enclosures. These suppliers are already compliant with the current ASTM 
voluntary standard (ASTM F1004-18) and are likely to remain compliant 
with the new standard. However, based upon current information, the 
Commission cannot rule out a significant economic impact on six 
suppliers of noncompliant gates and enclosures and 83 home-based 
suppliers of gates.
    For the three domestic manufacturers of gates and enclosures that 
do not comply with the voluntary standard, the cost of bringing 
products into compliance may be significant.\8\ Several firms indicate 
that the cost of a redesign could be between $400,000 and $1 million, 
depending on the materials used to construct the product. The changes 
in the requirements for instruction manuals and labeling are not 
expected to be significant for these firms. Typically, these firms have 
already developed and provided warning labels and instruction manuals 
with their products. For two of the three small manufacturers of 
noncompliant gates, third party testing costs are not expected to 
exceed 1 percent of revenue because they have high revenue levels and 
few gate models in their product lines. The revenue level for the third 
firm is unknown.
---------------------------------------------------------------------------

    \8\ Generally, we believe that impacts of less than one percent 
of a firm's revenue are unlikely to be significant. We cannot rule 
out the possibility that impacts of greater than one percent of 
revenue could be significant for some firms in some cases.
---------------------------------------------------------------------------

    For the three domestic importers/wholesalers that supply gates and 
enclosures that do not comply with the voluntary standard, the cost of 
ensuring compliance with the proposed standard could be significant, 
depending upon the extent of the changes required, and the response of 
their supplying firms. Finding another supplier, or dropping the 
product line entirely, are options for importers/wholesalers if their 
existing supplier does not make the necessary product changes. The 
impact on a given firm will depend on the revenue generated by the 
product line, the cost of finding an alternative supplier, and the 
variety of other products in their product line. Third party testing 
costs may also have a significant impact. However, CPSC staff was 
unable to find revenue information for two firms, and testing costs 
could exceed 1 percent of revenue for the third firm.
    Additionally, it is likely that all 83 of the very small, home-
based suppliers identified would be significantly impacted, regardless 
of whether they require modifications to meet the performance 
requirements of the proposed standard. Most of the firms are likely to 
leave the market because their revenue from the sale of gates does not 
appear to be sufficiently large to justify third party testing costs 
and the cost of developing warning labels and instructional literature 
if these have not been provided before. If confronted by these costs, 
most of these very small, home-based manufacturers could stop selling 
gates or go out of business.
    The Commission seeks comments on the changes that may be required 
to meet the voluntary standard, ASTM F1004-19, and in particular, 
whether redesign would be necessary, and what

[[Page 32354]]

the associated costs are and the time required to bring the products 
into compliance. The Commission also seeks comments from individuals/
firms familiar with various gates made by home-based suppliers who can 
provide additional information on the different styles of gates 
provided by home-based versus non-home-based suppliers. The Commission 
is particularly interested in how these firms are likely to respond to 
the proposed rule and the costs and time frame that would be required 
to modify any product, if applicable. Additionally, the Commission 
requests information on the number of home-based suppliers, and on the 
significance of gates sales specifically, to their total revenue.

D. Alternatives

    The Commission is proposing a 6-month effective date for the rule. 
A later effective date could reduce the economic impact on firms in two 
ways. First, firms would be less likely to experience a lapse in 
production/importation, which could result if they are unable to comply 
and have their products tested by a third party within the required 
timeframe. Second, firms could spread costs over a longer time period, 
thereby reducing their annual costs, as well as the present value of 
their total costs. Suppliers interviewed for the rulemaking indicated 
that 12-18 months might be necessary if a complete product redesign 
were required. Additional time might also be necessary for home-based 
suppliers that currently are not providing warning labels or 
instructional materials with their products to develop them.
    The Commission seeks comments on the impact of the proposed rule on 
small manufacturers and importers, in general, as well as alternative 
effective dates, or any other alternatives that could mitigate the 
impact on small firms. When suggesting an alternative, please provide 
specific information on the alternative, and the extent to which it 
could reduce the impact.

XI. Environmental Considerations

    The CPSC's regulations address whether we are required to prepare 
an environmental assessment or an environmental impact statement. 16 
CFR part 1021. Those regulations state that certain categories of CPSC 
actions normally have ``little or no potential for affecting the human 
environment,'' and therefore, do not require an environmental 
assessment or an environmental impact statement. 16 CFR 1021.5(c)(1). 
Rules or safety standards that provide design or performance 
requirements for products are among the listed exempt actions. Thus, 
the proposed rule falls within the categorical exemption.

XII. Paperwork Reduction Act

    This proposed rule contains information collection requirements 
that are subject to public comment and review by the Office of 
Management and Budget (OMB) under the Paperwork Reduction Act of 1995 
(PRA; 44 U.S.C. 3501-3521). Under 44 U.S.C. 3507(a)(1)(D), an agency 
must publish the following information:
     A title for the collection of information;
     a summary of the collection of information;
     a brief description of the need for the information and 
the proposed use of the information;
     a description of the likely respondents and proposed 
frequency of response to the collection of information;
     an estimate of the burden that shall result from the 
collection of information; and
     notice that comments may be submitted to the OMB.

    In accordance with this requirement, the CPSC provides the 
following information:
    Title: Safety Standard for Gates and Enclosures
    Description: The proposed rule would require each gates and 
enclosure to comply with ASTM F1004-19, Standard Consumer Safety 
Specification for Expansion Gates and Expandable Enclosures, with no 
modifications. Sections 8 and 9 of ASTM F1004-19 contain requirements 
for marking, labeling, and instructional literature. These requirements 
fall within the definition of ``collection of information,'' as defined 
in 44 U.S.C. 3502(3).
    Description of Respondents: Persons who manufacture or import gates 
or enclosures.
    Estimated Burden: We estimate the burden of this collection of 
information under 16 CFR part 1239 as follows:

                                                       Table 1--Estimated Annual Reporting Burden
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                                Total
                Burden type                         Type of supplier            Number of     Frequency of    Total annual      Hours per       burden
                                                                               respondents      responses       responses       response        hours
--------------------------------------------------------------------------------------------------------------------------------------------------------
Labeling...................................  Home-based manufacturers......              83               2             166               7        1,162
                                             Other Suppliers...............              30               8             240               1          240
                                                                            ----------------------------------------------------------------------------
    Labeling Total.........................  ..............................  ..............  ..............  ..............  ..............        1,402
Instructional literature...................  Home-based manufacturers......              83               2              50             100        8,300
                                                                            ----------------------------------------------------------------------------
    Total Burden...........................  ..............................  ..............  ..............  ..............  ..............        9,702
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Our estimate is based on the following:
    Two groups of firms that supply gates and enclosures to the U.S. 
market may need to modify their existing warning labels. The first are 
very small, home-based manufacturers (83), who may not currently have 
warning labels on their gates (CPSC staff did not identify any home-
based suppliers of enclosures). CPSC staff estimates that it would take 
home-based manufacturers approximately 15 hours to develop a new label; 
this translates to approximately 7 hours per response for this group of 
suppliers. Therefore, the total burden hours for very small, home-based 
manufacturers is 7 hours per model x 83 entities x 2 models per entity 
= 1,162 hours.
    The second group of firms supplying gates and enclosures to the 
U.S. market that may need to make some modifications to their existing 
warning labels are non-home-based manufacturers and importers (30). 
These are also mostly small domestic firms, but are not home-based and 
do not operate at the low production volume of the home-based firms. 
For this second group, all of whom have existing warning labels on 
their products and are used to working with warning labels on a variety 
of other products, we estimate that the time required to make any 
modifications now or in the future

[[Page 32355]]

would be about 1 hour per model. Based on an evaluation of supplier 
product lines, each entity supplies an average of 8 models of gates 
and/or enclosures; therefore, the estimated burden associated with 
labels is 1 hours per model x 30 entities x 8 models per entity = 240 
hours.
    The total burden hours attributable to warning labels is the sum of 
the burden hours for both groups of entities: Very small home-based 
manufacturers (1,162 burden hours) + non-home-based manufacturers and 
importers (240 burden hours) = 1,402 burden hours. We estimate the 
hourly compensation for the time required to create and update labels 
is $34.50 (U.S. Bureau of Labor Statistics, ``Employer Costs for 
Employee Compensation,'' December 2018, Table 9, total compensation for 
all sales and office workers in goods-producing private industries: 
https://www.bls.gov/ncs/). Therefore, the estimated annual cost to 
industry associated with the labeling requirements is $48,369 ($34.50 
per hour x 1,402 hours = $48,369). No operating, maintenance, or 
capital costs are associated with the collection.
    ASTM F1004-19 also requires instructions to be supplied with the 
product. Under the OMB's regulations (5 CFR 1320.3(b)(2)), the time, 
effort, and financial resources necessary to comply with a collection 
of information that would be incurred by persons in the ``normal course 
of their activities'' are excluded from a burden estimate, where an 
agency demonstrates that the disclosure activities required to comply 
are ``usual and customary.'' As with the warning labels, the reporting 
burden of this requirement differs for the two groups.
    Many of the home-based gate manufacturers supplying on a very small 
scale may provide either no instructions or only limited instructions 
with their products as part of their ``normal course of activities.'' 
CPSC staff estimates that each home-based entity supplying homemade 
gates and/or enclosures might require 50 hours to develop an 
instruction manual to accompany their products. Although the number of 
home-based suppliers of gates and/or enclosures is likely to vary 
substantially over time, based on CPSC staff's review of the 
marketplace, currently, there are approximately 83 home-based suppliers 
of gates and/or enclosures operating in the U.S. market. These firms 
typically supply two gates on average. Therefore, the costs of 
designing an instruction manual for these firms could be as high as 
$286,350 (50 hours per model x 83 entities x 2 models per entity = 
8,300 hours x $34.50 per hour = $286,350). Not all firms would incur 
these costs every year, but new firms that enter the market would and 
this may be a highly fluctuating market.
    The non-home-based manufacturers and importers likely are providing 
user instruction manuals already with their products, under the normal 
course of their activities. Therefore, for these entities, there are no 
burden hours associated with providing instructions.
    Based on this analysis, the proposed standard for gates and 
enclosures would impose an estimated total burden to industry of 9,702 
hours at a cost of $334,719 annually.
    In compliance with the PRA (44 U.S.C. 3507(d)), we have submitted 
the information collection requirements of this rule to the OMB for 
review. Interested persons are requested to submit comments regarding 
information collection by August 7, 2019, to the Office of Information 
and Regulatory Affairs, OMB (see the ADDRESSES section at the beginning 
of this notice).
    Pursuant to 44 U.S.C. 3506(c)(2)(A), we invite comments on:
     The estimated burden hours required for very small, home-
based manufacturers to modify (or, in some cases, create) warning 
labels;
     the estimated burden hours required for very small, home-
based manufacturers to modify (or, in some cases, create) instruction 
manuals;
     whether the collection of information is necessary for the 
proper performance of the CPSC's functions, including whether the 
information will have practical utility;
     the accuracy of the CPSC's estimate of the burden of the 
proposed collection of information, including the validity of the 
methodology and assumptions used;
     ways to enhance the quality, utility, and clarity of the 
information to be collected;
     ways to reduce the burden of the collection of information 
on respondents, including the use of automated collection techniques, 
when appropriate, and other forms of information technology; and
     the estimated burden hours associated with label 
modification, including any alternative estimates, for both home-based 
and non-home-based suppliers.

XIII. Preemption

    Section 26(a) of the CPSA, 15 U.S.C. 2075(a), provides that where a 
consumer product safety standard is in effect and applies to a product, 
no state or political subdivision of a state may either establish or 
continue in effect a requirement dealing with the same risk of injury 
unless the state requirement is identical to the federal standard. 
Section 26(c) of the CPSA also provides that states or political 
subdivisions of states may apply to the CPSC for an exemption from this 
preemption under certain circumstances. Section 104(b) of the CPSIA 
refers to the rules to be issued under that section as ``consumer 
product safety rules,'' thus, implying that the preemptive effect of 
section 26(a) of the CPSA would apply. Therefore, a rule issued under 
section 104 of the CPSIA will invoke the preemptive effect of section 
26(a) of the CPSA when it becomes effective.

XIV. Certification and Notice of Requirements (NOR)

    Section 14(a) of the CPSA imposes the requirement that products 
subject to a consumer product safety rule under the CPSA, or to a 
similar rule, ban, standard or regulation under any other act enforced 
by the CPSC, must be certified as complying with all applicable CPSC-
enforced requirements. 15 U.S.C. 2063(a). Section 14(a)(2) of the CPSA 
requires that certification of children's products subject to a 
children's product safety rule be based on testing conducted by a CPSC-
accepted third party conformity assessment body. Section 14(a)(3) of 
the CPSA requires the Commission to publish a notice of requirements 
(NOR) for the accreditation of third party conformity assessment bodies 
(or laboratories) to assess conformity with a children's product safety 
rule to which a children's product is subject. The proposed rule for 16 
CFR part 1239, ``Safety Standard for Gates and Enclosures,'' when 
issued as a final rule, will be a children's product safety rule that 
requires the issuance of an NOR.
    The CPSC published a final rule, Requirements Pertaining to Third 
Party Conformity Assessment Bodies, 78 FR 15836 (March 12, 2013), which 
is codified at 16 CFR part 1112 (referred to here as Part 1112). This 
rule took effect on June 10, 2013. Part 1112 establishes requirements 
for accreditation of third party conformity assessment bodies (or 
laboratories) to test for conformance with a children's product safety 
rule in accordance with Section 14(a)(2) of the CPSA. The final rule 
also codifies all of the NORs that the CPSC had published, to date. All 
new NORs, such as the gates and enclosures standard, require an 
amendment to part 1112. Accordingly, in this document, we propose to 
amend part 1112 to include the gates and enclosures standard, along 
with the other children's product safety rules for which the CPSC has 
issued NORs.

[[Page 32356]]

    Test laboratories applying for acceptance as a CPSC-accepted third 
party conformity assessment body to test to the new standard for gates 
and enclosures would be required to meet the third party conformity 
assessment body accreditation requirements in part 1112. When a 
laboratory meets the requirements as a CPSC-accepted third party 
conformity assessment body, it can apply to the CPSC to have 16 CFR 
part 1239, Safety Standard for Gates and Enclosures, included in its 
scope of accreditation of CPSC safety rules listed for the laboratory 
on the CPSC website at: www.cpsc.gov/labsearch.
    In connection with the part 1112 rulemaking, CPSC staff conducted 
an analysis of the potential impacts on small entities of the proposed 
rule establishing accreditation requirements, 77 FR 31086, 31123-26 
(May 24, 2012), as required by the RFA and prepared an Initial 
Regulatory Flexibility Analysis (IRFA). The IRFA concluded that the 
requirements would not have a significant adverse impact on a 
substantial number of small laboratories because no requirements are 
imposed on laboratories that do not intend to provide third party 
testing services under section 14(a)(2) of the CPSA. The only 
laboratories that are expected to provide such services are those that 
anticipate receiving sufficient revenue from providing the mandated 
testing to justify accepting the requirements as a business decision. 
Laboratories that do not expect to receive sufficient revenue from 
these services to justify accepting these requirements would not likely 
pursue accreditation for this purpose. Similarly, amending the part 
1112 rule to include the NOR for gates and enclosures would not have a 
significant adverse impact on small laboratories. Moreover, based upon 
the number of laboratories in the United States that have applied for 
CPSC acceptance of the accreditation to test for conformance to other 
juvenile product standards, we expect that only a few laboratories will 
seek CPSC acceptance of their accreditation to test for conformance 
with the gates and enclosures standard. Most of these laboratories will 
have already been accredited to test for conformance to other juvenile 
product standards and the only costs to them would be the cost of 
adding the gates and enclosures standard to their scope of 
accreditation. As a consequence, the Commission certifies that the 
proposed notice requirements for the gates and enclosures standard will 
not have a significant impact on a substantial number of small 
entities.

XIV. Request for Comments

    This proposed rule begins a rulemaking proceeding under section 
104(b) of the CPSIA for the Commission to issue a consumer product 
safety standard for gates and enclosures, and to amend part 1112 to add 
gates and enclosures to the list of children's product safety rules for 
which the CPSC has issued an NOR. In addition to requests for specific 
comments elsewhere in this NPR, the Commission invites all interested 
persons to submit comments on any aspect of the proposed rule.
    Comments should be submitted in accordance with the instructions in 
the ADDRESSES section at the beginning of this notice.

List of Subjects

16 CFR Part 1112

    Administrative practice and procedure, Audit, Consumer protection, 
Reporting and recordkeeping requirements, Third party conformity 
assessment body.

16 CFR Part 1239

    Consumer protection, Imports, Incorporation by reference, Infants 
and children, Labeling, Law enforcement, and Toys.

    For the reasons discussed in the preamble, the Commission proposes 
to amend parts 1112 and 1239 of Title 16 of the Code of Federal 
Regulations as follows:

PART 1112--REQUIREMENTS PERTAINING TO THIRD PARTY CONFORMITY 
ASSESSMENT BODIES

0
1. The authority citation for part 1112 continues to read as follows:

    Authority:  15 U.S.C. 2063; Pub. L. 110-314, section 3, 122 
Stat. 3016, 3017 (2008).

0
2. Amend Sec.  1112.15 by adding paragraph (b)(49) to read as follows:


Sec.  1112.15   When can a third party conformity assessment body apply 
for CPSC acceptance for a particular CPSC rule and/or test method?

* * * * *
    (b) * * *
    (49) 16 CFR part 1239, Safety Standard for Gates and Enclosures.
* * * * *
0
3. Add part 1239 to read as follows:

PART 1239--SAFETY STANDARD FOR GATES AND ENCLOSURES

Sec.
1239.1 Scope.
1239.2 Requirements for Gates and Enclosures.

    Authority:  Sec. 104, Pub. L. 110-314, 122 Stat. 3016 (15 U.S.C. 
2056a).


Sec.  1239.1  Scope.

    This part establishes a consumer product safety standard for gates 
and enclosures.


Sec.  1239.2  Requirements for gates and enclosures.

    Each gate and enclosure must comply with all applicable provisions 
of ASTM F1004-19, Standard Consumer Safety Specification for Expansion 
Gates and Expandable Enclosures, approved on June 1, 2019. The Director 
of the Federal Register approves this incorporation by reference in 
accordance with 5 U.S.C. 552(a) and 1 CFR part 51. You may obtain a 
copy from ASTM International, 100 Bar Harbor Drive, P.O. Box 0700, West 
Conshohocken, PA 19428; www.astm.org/cpsc.htm. You may inspect a copy 
at the Division of the Secretariat, U.S. Consumer Product Safety 
Commission, Room 820, 4330 East West Highway, Bethesda, MD 20814, 
telephone 301-504-7923, or at the National Archives and Records 
Administration (NARA). For information on the availability of this 
material at NARA, call 202-741-6030, or go to: www.archives.gov/federal-register/cfr/ibr-locations.html.

Alberta E. Mills,
Secretary, Consumer Product Safety Commission.
[FR Doc. 2019-14295 Filed 7-5-19; 8:45 am]
 BILLING CODE 6355-01-P