Safety Standard for Gates and Enclosures, 40100-40113 [2020-12561]
Download as PDF
40100
Federal Register / Vol. 85, No. 129 / Monday, July 6, 2020 / Rules and Regulations
[FR Doc. 2020–13260 Filed 7–2–20; 8:45 am]
BILLING CODE 4910–13–P
CONSUMER PRODUCT SAFETY
COMMISSION
16 CFR Parts 1112 and 1239
[Docket No. CPSC–2019–0014]
Safety Standard for Gates and
Enclosures
Consumer Product Safety
Commission.
ACTION: Final rule.
AGENCY:
Pursuant to the Consumer
Product Safety Improvement Act of
2008 (CPSIA), the U.S. Consumer
Product Safety Commission (CPSC) is
issuing this final rule establishing a
safety standard for gates and enclosures
that are intended to confine a child. The
CPSC is also amending its regulations
regarding third party conformity
assessment bodies to include the safety
standard for gates and enclosures in the
list of notices of requirements (NORs).
DATES: This rule will become effective
July 6, 2021. The incorporation by
reference of the publication listed in
this rule is approved by the Director of
the Federal Register as of July 6, 2021.
FOR FURTHER INFORMATION CONTACT:
Justin Jirgl, Compliance Officer, U.S.
Consumer Product Safety Commission,
4330 East West Highway, Bethesda, MD
20814; telephone: 301–504–7814; email:
jjirgl@cpsc.gov.
SUPPLEMENTARY INFORMATION:
SUMMARY:
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. Standards issued under
section 104 of the CPSIA are to be
‘‘substantially the same as’’ the
applicable voluntary standards or more
stringent than the voluntary standard, if
the Commission determines 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
VerDate Sep<11>2014
19:40 Jul 02, 2020
Jkt 250001
intended for use, or that may be
reasonably expected to be used, by
children under the age of 5 years,’’ and
the statute specifies 12 categories of
products that are included in the
definition. Section 104(f)(2)(E) of the
CPSIA specifically identifies ‘‘gates and
other enclosures for confining a child’’
as a durable infant or toddler product.
Additionally, the Commission’s
regulation requiring product registration
cards defines ‘‘gates and other
enclosures for confining a child’’ as a
durable infant or toddler product
subject to the registration card rule. 74
FR 68668 (Dec. 29, 2009); 16 CFR
1130.2(a)(5).
As required by section 104(b)(1)(A) of
the CPSIA, the Commission consulted
with manufacturers, retailers, trade
organizations, laboratories, consumer
advocacy groups, consultants, and the
public to develop this rule, largely
through ASTM’s standard development
process. On July 8, 2019, the
Commission issued a notice of proposed
rulemaking (NPR) for gates and
enclosures.1 84 FR 32346. The NPR
proposed to incorporate by reference the
voluntary standard developed by ASTM
International, ASTM F1004–19,
Standard Consumer Safety
Specification for Expansion Gates and
Expandable Enclosures (ASTM F1004–
19). Additionally, the NPR stated that
the Commission agreed that a new
requirement in ASTM F1004–19 that all
gates, including pressure-mounted
gates, meet a 30-pound push-out force
test at five test locations, will improve
children’s safety if the gate is installed
correctly. 84 FR at 32351. The NPR
discussed concerns with consumer
awareness of correct pressure-mounted
gate installation, and discussed
improvements to ASTM F1004–19 to
increase consumer awareness, including
the use of visual side-pressure
indicators and a separate warning label
along the top rail of the gate. Id. at
32351–52. The NPR stated that staff
would continue to work with ASTM to
improve consumer awareness of the
importance of proper installation of
pressure-mounted gates, and requested
comment on improved warnings and
visual side-pressure indicators. Id. The
Commission did not receive any
comments.
Since publication of the NPR, CPSC
staff has continued to work with the
ASTM subcommittee on gates and
enclosures on visual side-pressure
indicators and a separate warning label,
as outlined in the NPR. Although the
ASTM standard has not yet been
updated, the ASTM subcommittee is
moving forward to include a separate
warning label (for pressure-mounted
gates that rely on the use of wall cups
to meet the 30-pound push-out force
test), and has started moving forward to
include visual side-pressure indicators
(for pressure-mounted gates that do not
use wall cups to meet the 30-pound
push-out force test) to improve correct
installation of pressure-mounted gates.
Accordingly, for the final rule setting a
safety standard for gates and enclosures,
the Commission incorporates by
reference ASTM F1004–19, with the
following additional requirements,
depending on the design of a pressuremounted gate, to further reduce the risk
of injury associated with incorrectly
installed pressure-mounted gates:
(1) For pressure-mounted gates that
include wall cups with the product to
meet the 30-pound push-out force test,2
the gates must include a separate
warning label in a conspicuous location
on the top rail of the gate regarding
correct installation using wall cups, or
(2) For pressure-mounted gates that
do not use wall cups to meet the 30pound push-out force test, the gates
must use visual side-pressure indicators
to provide consumers feedback as to
whether the gate is correctly installed.
Under section 14 of the CPSA, the
Commission promulgated 16 CFR part
1112 to establish requirements for
accreditation of third party conformity
assessment bodies (or testing
laboratories) to test for conformity with
a children’s product safety rule. The
final rule amends the list of notices of
requirements (NORs) issued by the
Commission in 16 CFR part 1112 to
include the safety standard for gates and
enclosures.
CPSC staff’s briefing package
supporting this rule (Staff’s Final Rule
Briefing Package), is available at:
https://www.cpsc.gov/s3fs-public/
Final%20Rule%20-%20Safety%20
Standard%20for%20Gates%20
and%20Enclosures.pdf?lHExt6trs
EuD56jiQTi7Ab0TjzdVQ_HH.
1 Staff’s June 19, 2019 Briefing Package for the
NPR (Staff’s NPR Briefing Package) is available at:
https://www.cpsc.gov/s3fs-public/
Proposed%20Rule%20-%20Safety%20Standard%
20for%20Gates%20and%20Enclosures%20%20June%2019%202019.pdf.
2 Note that section 6.7 of ASTM F1004–19 already
requires that pressure-mounted gates that rely on
the use of wall cups to meet the 30-pound pushout force test in section 6.3 of the standard to
include the wall cups and necessary hardware to
install them in the product packaging.
PO 00000
Frm 00012
Fmt 4700
Sfmt 4700
II. Product Description
A. Definition of ‘‘Gates and Other
Enclosures’’
ASTM F1004–19 defines an
‘‘expansion gate’’ as a ‘‘barrier intended
E:\FR\FM\06JYR1.SGM
06JYR1
Federal Register / Vol. 85, No. 129 / Monday, July 6, 2020 / Rules and Regulations
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 ‘‘selfsupporting barrier intended to
completely surround an area or playspace within which a young child may
be confined’’ (section 3.1.6). These
products are intended for young
children age 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).3
Both expandable gates and nonexpandable 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 nonexpandable enclosures may serve as
barriers intended to surround an area or
play-space completely to confine young
children. Similarly, all children’s gates
and enclosures, whether they expand or
not, can be removed by older persons
who are able to operate the locking
mechanism.
CPSC staff’s review of enclosures
shows that all enclosures are
expandable. Staff’s review of gates
showed that there are some nonexpandable, fixed-sized gates available
for sale.4 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.
This final rule addresses all children’s
gates and enclosures intended for
confining a child, including nonexpandable, fixed-sized gates and
3 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.
4 The majority of non-expandable, fixed-size gates
are sold by home-based manufacturers with very
low sales volumes.
VerDate Sep<11>2014
18:55 Jul 02, 2020
Jkt 250001
enclosures. The scope of the rule
includes all products within ASTM
F1004–19.
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
also have a means of egress (i.e., some
self-supporting barriers have egress
panels that resemble gates). Gates may
be hardware-mounted, pressuremounted, 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 mark their walls
permanently. 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 127 firms supply gates
and enclosures to the U.S. market. The
majority of suppliers to the U.S. market
are domestic, including domestic
importers of gates manufactured
elsewhere. About 80 very small, homebased domestic gate manufacturers
exist, as well as 37 domestic entities
that are considered small based on the
U.S. Small Business Administration
(SBA) guidelines. The remaining 10
suppliers that are not small domestic
businesses include four large domestic
firms and six foreign firms. In 2013,
approximately 11.1 million gates/
enclosures were in use in U.S.
households with children under the age
of 6, according to the CPSC’s 2013
Durable Nursery Product Exposure
Survey (DNPES).
Gates and enclosures vary widely in
price. Consumers can purchase simple
plastic or wooden pressure-mounted
gates for as little as $10, while
hardware-mounted gates with multiple
extensions, and gates intended for
daycare use, can cost as much as $700.
Most gates retail for $25 to $200. Retail
prices for enclosures and modular
products that can operate as an
enclosure or a gate range from $60 to
$550. Fabric gates made by home-based
manufacturers typically cost under $50,
while custom-made wooden gates by
home-based manufacturers can run
more than $500 for gates with solid
hardwood panels and decorative metal
elements. Pressure-mounted gates,
particularly hard plastic-molded gates,
tend to be the least expensive gates and
are sometimes marketed as travel gates.
PO 00000
Frm 00013
Fmt 4700
Sfmt 4700
40101
Hardware-mounted gates tend to be
slightly more expensive than pressuremounted gates, although there are many
hardware-mounted gates available for
less than $40.
The least expensive pressure-mounted
gates are a popular choice with
consumers, but price may not be the
predominant criterion for many
customers. Out of several hundred
models of gates available on the site of
one prominent internet retailer in
January 2020, the 10 best-selling baby
safety gates ranged in price from $12 to
$85. On another major big box store
website, the top 10 best-selling gates
ranged in price from $17 to $100. In
both cases, the best-selling gates
included hardware-mounted gates and
pressure-mounted gates. All of the bestselling gates were from suppliers that
currently claim both ASTM compliance
and JPMA certification.
III. Incident Data
A. CPSRMS Data
CPSC staff reviewed incident data
associated with children’s gates and
enclosures as reported through the
Consumer Product Safety Risk
Management System (CPSRMS).5
Although gates and enclosures 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 securely to prevent injuries.
CPSC staff reviewed the incident data
involving older children and adults to
determine hazard patterns. However,
staff reported incident data in the NPR
and this final rule only for injuries
sustained by children younger than 5
years of age. Gates and enclosures are
not intended for children older than 23
months, and the statutory definition of
‘‘durable infant or toddler products’’
states that the products are ‘‘intended
for use, or that may be reasonably
expected to be used, by children under
the age of 5 years.’’ Section 104(f)(1) of
the CPSIA.
The NPR stated that the Commission
was aware of 436 incidents in the
CPSRMS data, including 108 reported
injuries and 19 reported fatalities
5 CPSC staff searched the CPSC database
CPSRMS. 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, the reported incidents provide
a minimum number of deaths and incidents
occurring during this period and illustrate the
circumstances involved in the incidents related to
children’s gates and enclosures.
Staff also reviewed national injury estimates,
discussed below in III.B of this preamble.
E:\FR\FM\06JYR1.SGM
06JYR1
40102
Federal Register / Vol. 85, No. 129 / Monday, July 6, 2020 / Rules and Regulations
involving child gates and enclosures,
occurring from January 1, 2008 to
October 31, 2018. Since that data
extraction, CPSC staff identified an
additional 42 incidents in the CPSRMS
data, occurring from November 1, 2018
to January 7, 2020, including four
reported injuries and three reported
fatalities. Accordingly, for the final rule,
the Commission is aware of 478
incidents in the CPSRMS data,
including 112 reported injuries and 22
fatalities involving gates and enclosures,
which occurred from January 1, 2008 to
January 7, 2020. Because reporting is
ongoing, the number of reported
incidents during this period may change
in the future.
1. Fatalities
The Commission is aware of 22 deaths
that occurred between January 1, 2008
and January 7, 2020. The NPR discussed
19 deaths, stating that 17 of the deaths
were associated with the use of a gate,
while two were associated with an
enclosure. Fifteen of the 19 decedents
discussed in the NPR 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 somehow was opened without
the caregiver’s knowledge (10
incidents); the gate/enclosure was
knocked down or pushed out by the
decedent because of 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.
84 FR at 32347.
CPSC staff identified three additional
fatal incidents since the NPR, reported
to have occurred during the period
November 1, 2018 to January 7, 2020.
All three incidents involved a gate. The
new fatalities include: A 2-year-old who
drowned after climbing out of a crib,
knocking over a baby gate, pushing open
a living room door, and gaining access
to an in-ground pool; a 23-month-old
who suffocated in a gate opening while
attempting to climb out of a crib after a
baby gate was placed over the crib; and
a 2-year-old who suffered asphyxiation
after her neck was caught between a
baby gate, fabric sheet, and door frame.
2. Nonfatalities
The NPR described 417 nonfatal
incidents, and CPSC is aware of an
additional 39 nonfatal incidents since
the NPR, for a total of 456 nonfatal
incidents that reportedly occurred
between January 1, 2008 and January 7,
2020. Of the total 456 nonfatal incidents
reported, 134 incidents described an
VerDate Sep<11>2014
18:55 Jul 02, 2020
Jkt 250001
injury to a child younger than 5 years
of age.
The NPR stated that three of the
nonfatal 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, who
each suffered a near-drowning episode,
and another 2-year-old ended up in a
coma following 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.
84 FR at 32347–48. Since the NPR,
CPSC is not aware of any additional
hospitalizations associated with the use
of gates or enclosures.
The NPR stated that 15 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. Id. Since the
NPR, CPSC is not aware of any
additional children who were treated
and released from a hospital ED
associated with the use of gates or
enclosures.
Among the remaining injury reports
described in the NPR, some specifically
mentioned the type of injury, while
others only mentioned an injury, but no
specifics about the injury. Head injuries,
concussions, teeth avulsions, sprains,
abrasions, contusions, and lacerations
were some of the common injuries
reported at the time of the NPR. Id.
Since the NPR, four of the additional 39
nonfatal incidents reported an injury to
a child younger than 5 years of age. Two
reported injuries involved falls related
to the failure or collapse of gates and
enclosures, resulting in one child
bumping her face on the floor after
mounting an enclosure that collapsed
under her weight, and one child
sustaining minor bruises after falling
down 14 steps when a gate failed. In
two additional reported injuries,
children caught their fingers in the gaps
of a gate, resulting in a swollen finger,
and another child who almost broke his
finger in the clasp used to latch a gate.
The remaining 344 nonfatal incidents
associated with gates and enclosures
that occurred from January 1, 2008
through January 7, 2020, reported that
no injury had occurred to a child
younger than 5 years of age, or provided
no information about any injury.
However, staff found that many of the
PO 00000
Frm 00014
Fmt 4700
Sfmt 4700
incident descriptions indicated
potential injury or death resulting from
sharp edges, pinching, falls,
entrapments, and choking.
B. National Injury Estimates
CPSC staff also reviewed injury
estimates from the National Electronic
Injury Surveillance System (NEISS), a
statistically valid injury surveillance
system.6 NEISS injury data are gathered
from EDs of hospitals selected as a
probability sample of all the U.S.
hospitals with EDs. As described in the
NPR briefing package, staff estimated
that a total of 22,840 injuries (sample
size=820, coefficient of variation=0.10)
related to safety gates and enclosures
were treated in U.S. hospital emergency
departments from 2008 to 2017. Using
NEISS data finalized in spring 2019,
staff’s update includes injury estimates
for 2018, resulting in an estimated total
of 25,430 injuries (sample size=928,
coefficient of variation=0.11) related to
safety gates and enclosures treated in
U.S. hospital emergency departments
from 2008 to 2018. Staff did not observe
a statistically significant trend for this
period.
Staff found no recorded fatalities in
NEISS. Ninety-five percent of children
who went to a hospital ED were treated
and released. The breakdown by age in
the NEISS data indicates: 18 percent of
all children were under 1 year old; 40
percent were at least 1 year old, but less
than 2 years old; and 42 percent were
more than 2 years old, but less than 5
years old. Due to the limited
information from NEISS injury
descriptions, which are brief and injuryfocused, staff could not feasibly
characterize hazard patterns similar to
the characterization provided in section
IV of this preamble for CPSRMS
incident data. Based on the limited
information provided, staff found the
most frequent NEISS injury
characteristics:
• Hazard—falls (58 percent) and
impact on gate/enclosure (30 percent)
were the most common. Approximately
11 percent of the impact injuries
occurred when a child on a flight of
steps fell and hit a safety gate at the
bottom of the stairs. Most of the falls
occurred:
Æ When a child attempted to climb
over or get through a barrier;
Æ when a child managed to unlatch a
gate/enclosure;
Æ when a gate failed to stay upright
and locked;
6 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.
E:\FR\FM\06JYR1.SGM
06JYR1
Federal Register / Vol. 85, No. 129 / Monday, July 6, 2020 / Rules and Regulations
Æ when a child-carrying-adult tripped
over a gate/enclosure; or
Æ when a child pulled on a gate/
enclosure.
• Injured body part—head (39
percent), face (21 percent), and mouth
(10 percent).
• Injury type—lacerations (28
percent), internal organ injury (24
percent), and contusions/abrasions (18
percent).
IV. Hazard Pattern Identification
In the NPR briefing package, staff
reviewed the CPSRMS data and
identified hazard patterns for the 436
reported incidents (19 fatal and 417
nonfatal) associated with the use of
safety gates and enclosures. For the final
rule, staff reviewed and incorporated
the additional 42 incidents found in the
CPSRMS data since the NPR, for a total
of 478 reported incidents (22 fatal and
456 nonfatal, including 112 reported
injuries) associated with the use of gates
and enclosures that occurred from
January 1, 2008 to January 7, 2020. Staff
found that the hazard patterns largely
followed those described in the NPR,
except no new incidents were identified
in the following categories:
Miscellaneous other issues and
consumer comments, climb-over,
caregiver mis-step, repaired/modified,
or undetermined issues. Staff grouped
the hazard patterns into three categories:
Product-related, non-product-related,
and undetermined. Most of the
identified hazard patterns (95%) are
product-related hazards. A description
of the staff-identified hazard patterns, in
order of descending frequency, follows.
A. Product-Related
• Hardware issues: Of the 478
incidents, 183 (38%) reported hardwarerelated problems. These problems were
due to:
Æ Lock/latch hardware (e.g., lock or
latch breaking, not latching correctly,
opening too easily, or getting stuck);
Æ hinge hardware (mostly breaking
and causing the gate to fall off);
Æ mounting hardware (mostly
breaking and causing gate to fall off); or
Æ other hardware, such as a slide
guide, or a swing-control clip, breaking
or coming loose, or a suction cup
coming loose.
These hardware failures were
associated with 39 injuries, including
bruises, 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 478 incidents,
109 (23%) reported slats breaking or
detaching from the safety gate or
VerDate Sep<11>2014
18:55 Jul 02, 2020
Jkt 250001
enclosure, or splitting. Sixteen injuries
were reported in this category, resulting
in contusions/abrasions or lacerations.
Once the slat(s) broke, the child got
injured on it, fell forward through the
gap created, or lost balance and fell
backwards. One injury incident resulted
in treatment at a hospital ED.
• Poor quality material and finish: Of
the 478 incidents, 58 (12%) 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 478 incident
reports, 49 (10%) indicated some
problems with the design of the gate or
enclosure. The reported problems
involved:
Æ Opening sizes between slats or
enclosure panels that allowed, or could
allow, entrapment of a child’s limb or
head;
Æ pinch-points created near an Lshaped clasp on a gate, and during the
sliding action of a door on a gate or
enclosure;
Æ a specific design, which created a
foot-hold that a child could use to climb
over the safety gate;
Æ a specific design that posed a trip
hazard when the gate was in the open
position;
Æ a gate’s retraction system, where
the gate fails to retract correctly after
installation;
Æ drilled holes used for connecting
gates, which allowed plastic shavings to
accumulate; or
Æ a specific design involving rails at
the bottom of a gate at several different
heights, posing a trip hazard.
Staff identified 21 injuries and one
death in this category. The injuries
included swollen or pinched fingers
from inserting them into openings of a
gate; three fractures of the finger and
one severed fingertip, all treated at a
hospital ED. The death resulted from
entrapment in a gate, fabric sheet, and
door frame.
• Installation problems: Of the 478
incident reports, 21 (4%) indicated
problems with installation due to:
Æ Unclear installation instructions;
Æ mismatched dimensions between
the safety gate and the doorway/hallway
opening; or
Æ unknown reasons; in these cases,
the gate/enclosure was reported to have
been installed, but was ‘‘pushed out,’’
‘‘pulled down,’’ or ‘‘knocked down.’’
Five drowning fatalities were reported
in this category. In addition, staff
identified four nonfatal injuries: One a
PO 00000
Frm 00015
Fmt 4700
Sfmt 4700
40103
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 478
incident reports (1%) fall within the
miscellaneous category, 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. One unspecified injury falls
within this category.
• Instability issues in enclosures:
Four of the 478 incidents (<1%)
reported problems with flimsy and/or
unstable enclosures that failed to hold
together. Two laceration/contusion
injuries and one facial injury were
reported in this category.
• Multiple problems from among the
above: Twenty-two of the 478 incident
reports (5%) described two or more
problems from the preceding productrelated issues. Two minor injuries were
reported in this category.7
B. Non-Product-Related
Twelve of the 478 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;
• Four incidents reported misuse of
gates in a hazardous manner; and
• One report involving a gate
previously repaired/modified and
structurally compromised.
Nine deaths are included in this
category: Four due to drowning, four
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 forehead
concussion.
C. Undetermined
For 13 of the 478 incident reports
(3%), staff had insufficient information
on the scenario-specific details to
7 Redistributing these 22 complaints among the
other pertinent subcategories within the productrelated 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 this occurrence, the 20
incidents were grouped in a separate subcategory.
E:\FR\FM\06JYR1.SGM
06JYR1
40104
Federal Register / Vol. 85, No. 129 / Monday, July 6, 2020 / Rules and Regulations
determine definitively whether the
product failed or user error resulted in
the incident. Accordingly, 13 incidents
fall within the undetermined category.
Staff found seven drowning deaths
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
For the NPR, CPSC staff reviewed
recalls involving children’s gates and
enclosures from January 2008 to
December 2018. 84 FR at 32349. During
that period, CPSC announced five
recalls involving baby gates and one
recall involving an enclosure. More than
1 million units (1,318,180), associated
with 215 incidents and 13 injuries were
recalled for the following hazards to
children: Fall, entrapments, tripping,
and lacerations. No additional recalls
involving gates or enclosures have
occurred since December 2018.
V. Overview of 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 to clarify
the standard. Revisions 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, leadcontaining substances in surfaces, 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
VerDate Sep<11>2014
18:55 Jul 02, 2020
Jkt 250001
warning labels and instructions.8 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. The scope of the standard
states that it includes products known
as expansion gates and expandable
enclosures, or known 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. For example, section 3.1.7 of
the 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 (see 1.2), but which can
be removed by older persons who are
able to operate the locking mechanism.’’
General Requirements. This section
addresses numerous hazards with
general requirements, most of which are
also found in the other ASTM juvenile
product standards. ASTM F1004–19
contains the following requirements to
address safety hazards common to many
juvenile products:
• 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
8 A more detailed summary of the changes to
ASTM F1004 can be found on page 8 of Staff’s Final
Rule Briefing Package.
PO 00000
Frm 00016
Fmt 4700
Sfmt 4700
the small torso probe when it is pushed
into the opening with a 25-pound force.
This requirement is intended to address
incidents in which 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 passageways to be
blocked off, for example, a 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. This requirement is
intended to prevent child 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 45pound 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 child
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 in which children were found
with their heads entrapped under a gate,
after having 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 to screen out nonhazardous 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
E:\FR\FM\06JYR1.SGM
06JYR1
Federal Register / Vol. 85, No. 129 / Monday, July 6, 2020 / Rules and Regulations
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. Cycling egress
panels for 2,000 times tests the
durability of gates or enclosures having
egress panels that 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 preconditioning 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 close
automatically 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 closes completely and locks as it is
expected and advertised to do, thereby
reducing the likelihood of a child
accessing potentially hazardous
conditions on the other side of an
unintentionally unsecured gate.
• Push-out force strength: This test
must be conducted in five specified
locations: The four corners of the gate,
as well as the center. The test requires
that a horizontal push-out force be
applied five times to each of the test
locations, and that the maximum force
be applied before the gate pushes out of
the test fixture. The test requires that
data be recorded and averaged for each
test location (up to a maximum of 45
pounds). The maximum force of 45
pounds was selected because it
simulates the effects of the largest
intended occupant’s weight. The
average push-out force shall exceed 30
pounds in all five test locations (and
each individual force shall exceed 20
pounds). This requirement is intended
to prevent a child from being able to
dislodge the gate and gain access to a
hazardous area the gate was meant to
keep them from accessing.
• 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 pounds
to activate and open the gate; or (2) the
lock must have a double-action release
VerDate Sep<11>2014
18:55 Jul 02, 2020
Jkt 250001
mechanism. This requirement is
intended to prevent a child 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.’’ This
requirement is intended to ensure that
any toys that come with an enclosure
meet the same safety requirements as
toys sold separately from an enclosure.
• Slat Strength: This test verifies that
no wood or metal vertical members
(slats) completely break, or that 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
labels attached by a seam shall not
liberate when subjected to a 15-pound
pull force. This requirement is intended
to ensure that product labels are
permanently affixed.
Warning, Labeling and Instructions.
These provisions specify the marking,
labeling, and instructional literature
requirements that must appear on, or
with, each gate or enclosure. Warnings
are also required on the retail packaging,
unless they are visible in their entirety
on the gate or enclosure at point of
purchase for consumers to see.
• All gates and enclosures must
include warnings on the product about
the risk of serious injury or death when
a product is not installed securely, 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 without the use of
wall cups 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.’’
PO 00000
Frm 00017
Fmt 4700
Sfmt 4700
40105
C. International Standards for Gates and
Enclosures
The NPR discussed CPSC staff’s
review of two international standards
that address gates and enclosures (1) the
European Standard, EN 1930:2011/A1
Child use and care articles—Safety
barriers—Safety requirements and test
methods; and (2) Canadian regulation,
SOR/2016–179 Expansion Gates and
Expandable Enclosures Regulations (the
Canadian regulation refers to an
outdated 1986 version of ASTM F1004
which has been superseded by recent
versions). 84 FR at 32352. In comparing
these two international standards to
ASTM F1004–19, staff determined that
ASTM F1004–19 is adequate, or more
stringent than, the international
standards in addressing the hazard
patterns identified in the incident data
associated with gates and enclosures. Id.
VI. Adequacy of ASTM F1004–19
Requirements To Address Identified
Hazards
For the NPR, the Commission stated
that the current voluntary standard,
ASTM F1004–19, adequately 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. 84
FR at 32350. Additionally, in the NPR,
the Commission stated that the
performance requirements and test
methods in ASTM F1004–19 adequately
address most of the primary hazard
patterns identified in the incident data,
except for consumer awareness of
whether a pressure-mounted gate is
installed correctly. Id. at 32350–52.
Based on staff’s assessment of all 478
reported incidents (22 fatal and 456
nonfatal; 428 associated with the use of
a gate and 50 associated with the use of
an enclosure) to identify hazard patterns
associated with children’s gates and
enclosures, as well as staff’s evaluation
of ASTM F1004–19, for this final rule,
the Commission concludes that ASTM
F1004–19 adequately addresses the
identified hazards associated with the
use of gates and enclosures except for
one—installation issues associated with
pressure-mounted gates.9
Installation problems are associated
with 21 incidents (4%), including five
drowning fatalities. The CPSC incident
data show that incidents occurred
when: A product included unclear
instructions; mismatched dimensions
between a gate and the opening it was
9 See Staff Final Rule Briefing Package at Tabs B
and C.
E:\FR\FM\06JYR1.SGM
06JYR1
40106
Federal Register / Vol. 85, No. 129 / Monday, July 6, 2020 / Rules and Regulations
meant to fit into; and failure of the gate
to remain upright in an opening,
described as ‘‘pushed out,’’ ‘‘pulled
down,’’ or ‘‘knocked down.’’ The most
recent revision, ASTM F1004–19,
represents a large step forward in
addressing installation issues, especially
related to pressure-mounted gate pushout hazards. The revision requires all
gates to meet the same push-out force
(e.g., 30 pounds) with provisions that
allow the use of wall cups to meet this
requirement. CPSC staff’s testing found
that most pressure-mounted gates tested
can meet the 30-pound push-out force
requirements of ASTM F1004–19 with
the use of wall cups. Correct installation
of pressure-mounted gates depends on
consumer awareness and behavior to
install the gate correctly. Based on the
incident reports and staff’s testing, the
Commission concludes that additional
requirements are necessary to further
strengthen the standard to reduce the
risk of injury associated with the use of
pressure-mounted gates, by increasing
the likelihood that caregivers install
such gates securely to confine their
child.
The Commission will finalize the rule
with two alternative requirements,
depending on whether wall cups are
necessary to meet the 30-pound pushout force test, to address the hazards
associated with incorrect installation of
pressure-mounted gates. The two
alternative requirements specify that: (1)
For gates that use wall cups, a separate
warning label in a conspicuous location
on the top rail of the gate regarding
correct installation using wall cups; or
(2) for gates that do not use wall cups,
visual side-pressure indicators to
provide consumers feedback about
whether the gate is installed correctly.
A. Separate Warning Label
ASTM F1004–19 currently requires a
warning statement about the hazard of
installing gates without wall cups: ‘‘You
MUST install wall cups to keep the gate
in place. Without wall cups, child can
push out and escape.’’ This warning
statement is included within the general
warning label, which can have as many
as six different required messages in one
location. However, the use of wall cups
to meet the 30-pound push-out force
test, and thus, to improve safety, relies
on consumers actually installing the
wall cups. To improve the likelihood
that consumers will follow directions
and heed the associated warning label,
the location of the label is important.
Installation-related incidents with
pressure-mounted gates include deaths
and serious injuries, and wall cups are
critical features that are necessary for
correct installation of some pressure-
VerDate Sep<11>2014
18:55 Jul 02, 2020
Jkt 250001
mounted gates. Accordingly, throughout
the consultation process, CPSC staff
consistently recommended that ASTM
consider locating the pressure-gate/
push-out warning as a separate and
distinct warning positioned in a highly
conspicuous location, such as along the
top rail of the gate. A top-rail location
would be within the caregiver’s line of
sight and oriented in a readable
direction during normal use of the gate.
In the NPR, staff indicated that further
collaboration with stakeholders at
ASTM could result in moving the wall
cup warning language from its current
location. Currently, the wall cup
warning language is mixed in with the
other warning statements. Staff
suggested moving the warning language
to a place where the warning is highly
conspicuous, separate, and distinct,
such as a place along the top rail of the
gate that is visible to a caregiver
operating the gate. However, no task
group or subcommittee meetings
occurred between June 2019 and
December 2019, nor did ASTM issue a
ballot regarding the wall cap warning
language. In December 2019, CPSC staff
sent a letter 10 to the ASTM
subcommittee chair, requesting a
subcommittee meeting to discuss
specific ballot language about the
warning label recommendation. The
subcommittee met on January 21, 2020,
and agreed to send the proposal to
ballot. ASTM issued the ballot on March
5, 2020 (ASTM Ballot F15 (20–02), Item
4), and the ballot closed on April 6,
2020. The ballot received two
substantive negative votes. Both
negative votes noted that the balloted
language stated that all ‘‘products’’ must
contain the wall cup warning, rather
than state that just pressure-mounted
gates must contain the warning. On May
6, 2020, ASTM released a ballot
containing a revision to the warning
label location, containing a clarification
to address these negatives by replacing
the word ‘‘products’’ with ‘‘pressuremounted gates.’’ This ballot closes on
June 5, 2020.
To further reduce the risk of injury
associated with incorrectly installed
pressure-mounted gates, the final rule
requires that pressure-mounted gates
that rely on wall cups to meet the 30pound push-out force requirement, must
also place a warning regarding
installation of wall cups along the top
rail of the gate, separate and distinct
from other warnings. The wording of
this requirement in the final rule
10 https://www.regulations.gov/contentStreamer?
documentId=CPSC-2019-00140006&contentType=pdf.
PO 00000
Frm 00018
Fmt 4700
Sfmt 4700
harmonizes with the ASTM ballot F15
(20–04), Item 6.
B. Visual Side-Pressure Indicators
Before the NPR, CPSC staff presented
a series of recommendations to the
F15.16 subcommittee to improve the
installation of pressure-mounted gates,
including improvements to the push-out
test, and potentially using visual
indicators to inform caregivers when a
pressure-mounted gate is installed
securely. Leading up to the NPR, the
subcommittee made the recommended
improvements in the standard to the
push-out test, in addition to requiring
that all gates (including pressuremounted gates) meet 30 pounds of pushout resistance. Although some pressuremounted gates are capable of meeting 30
pounds of push-out resistance without
wall cups when they are installed
correctly, most pressure-mounted gates
likely will use wall cups. CPSC staff
testing found that ASTM F1004–19
requires gates that use wall cups to
come with the wall cups and other
mounting hardware. As stated above in
IV.A, the final rule will also require
these gates to place a warning label
along the top rail regarding the
importance of installing wall cups.
However, for pressure-mounted gates
that do not rely on wall cups to meet the
30-pound push-out force test, ASTM
F1004–19 contains no requirement to
provide feedback to the end consumer
to indicate whether the gate is installed
correctly. Instructions for pressuremounted gates without wall cups
provide little or no clear direction to
help consumers know when the gate is
installed correctly, or that it stays in
place after several uses. For example,
gates currently on the market may
instruct the consumer to adjust until
secure, or to push the gate to feel if it
is secure. CPSC staff observed that even
when following the manufacturer’s
instructions, the push-out force for some
gates that use tension bolts varies each
time the gate is re-installed and tested.
Staff also observed that with one metal
gate tested, where tension bolts and nuts
are used to secure it in place, only a half
rotation of the tension nuts would
change the distance between the gate
and the test fixture by 0.032 inches and
result in a gate meeting or not meeting
the 30 pound push-out force
requirement. These adjustments are
barely noticeable to the average
consumer, who relies only on feel, and
not precise measurements or any other
feedback.
Staff testing and analysis, discussed
in detail in Staff’s NPR Briefing Package,
Tab C, and Staff’s Final Rule Briefing
Package, Tab B, suggest that visual
E:\FR\FM\06JYR1.SGM
06JYR1
Federal Register / Vol. 85, No. 129 / Monday, July 6, 2020 / Rules and Regulations
indicators can improve the safety of
pressure-mounted gates that do not use
wall cups. At the time of the NPR, staff
recommended continuing to work with
the ASTM subcommittee to resolve the
issue of visual side-pressure indicators.
However, no task group or
subcommittee meetings occurred from
June 2019 to December 2019; nor did
ASTM issue a ballot on this matter. The
NPR invited comments on this specific
issue, but the Commission received no
comments.
In a letter dated December 11, 2019,11
CPSC staff urged discussion at an ASTM
subcommittee meeting regarding ballot
language to include a visual sidepressure indicator provision for
pressure-mounted gates that do not use
wall cups to meet the 30 pound pushout force test in the ASTM standard. On
January 21, 2020, the ASTM
subcommittee discussed draft language
for a visual side-pressure indicator
provision. ASTM subcommittee
members raised concerns regarding
potential issues, such as proposed
language using the term ‘‘minimum
pressure.’’ Some subcommittee
members stated that this language
implied that a test lab would need to
measure the pressure at each corner of
the gate. CPSC staff clarified that staff’s
intention was that the current push-out
force performance test would identify
gates that indicate incorrectly that the
required side pressure is maintained.
However, after this discussion, the
ASTM subcommittee chair reactivated
the visual side-pressure indicator task
group to potentially revise the draft
proposed language to address
subcommittee member concerns.
On March 10, 2020, the task group
met to discuss the draft ballot proposal.
Task group discussion centered on the
testability of the visual side-pressure
indicator performance requirement for
pressure-mounted gates. The task group
meeting concluded with the task group
chair agreeing to revise the proposed
ballot language to address member
concerns and to resend the proposed
ballot language to the task group for
review. On April 2, 2020, CPSC staff
received a draft proposal from the task
group chair. On April 22, 2020, the task
group chair recirculated the same draft.
On April 23, 2020, the task group chair
indicated his intention to ballot the
proposal, unless there were significant
comments from the task group
necessitating another meeting. CPSC
staff is unaware of any further comment.
11 https://www.regulations.gov/contentStreamer?
documentId=CPSC-2019-0014-0006&content
Type=pdf.
VerDate Sep<11>2014
18:55 Jul 02, 2020
Jkt 250001
After reviewing the revised ballot
language for visual side-pressure
indicators, CPSC staff concluded that
the proposed language adequately
addresses staff’s concerns and provides
a visual indicator of whether a pressuremounted gate that does not use wall
cups to meet the 30-pound push-out
force test is installed securely. The
Commission agrees, and anticipates that
ASTM will ballot this requirement
within the next few months to
incorporate into ASTM F1004.
Accordingly, to further reduce the risk
of injury associated with incorrect
installation of pressure-mounted gates,
the draft final rule requires that
pressure-mounted gates that do not use
wall cups, to meet the 30-pound pushout force test, must include visual sidepressure indicators to inform caregivers
that the gate is installed securely. The
language for this requirement in the
final rule harmonizes with the ASTM
task group draft language circulated
April 22, 2020.
VII. Response to Comments
CPSC received three comments on the
NPR.12 A trade association forwarded
two comments, one comment did not
address the NPR. The two comments
generally supported the NPR and the
ASTM process. However, the
commenter disagreed with the proposed
6-month effective date, anticipating the
effect that the standard may have on
small businesses. This commenter
recommended a 12-month effective
date. The Commission agrees, and the
final rule contains a 12-month effective
date, as discussed below in section X of
this preamble.
VIII. Description of the Mandatory
Standard for Gates and Enclosures
The Commission concludes that
ASTM F1004–19 adequately addresses
the hazards associated with gates and
enclosures, except for consumer
awareness about whether pressuremounted gates are installed correctly.
Thus, for the final rule on safety
standards for gates and enclosures, the
Commission incorporates by reference
ASTM F1004–19, with the addition of
the following two alternative
requirements to provide consumers with
additional information about correct
installation of pressure-mounted gates,
to further reduce the risk of injury
associated with the use of pressuremounted gates:
(1) For pressure-mounted gates that
include wall cups with the product to
meet the 30-pound push-out force test,
12 Available at https://www.regulations.gov/
docket?D=CPSC-2019-0014.
PO 00000
Frm 00019
Fmt 4700
Sfmt 4700
40107
the gates must include a separate
warning label in a conspicuous location
on the top rail of the gate regarding
correct installation using wall cups; or
(2) For pressure-mounted gates that
do not use wall cups to meet the 30pound push-out force test, the gates
must use visual side-pressure indicators
to provide consumers with feedback on
whether the gate is installed correctly.
IX. Incorporation by Reference
Section 1239.2(a) of the final rule
provides that each gate and enclosure
must comply with applicable sections of
ASTM F1004–19. The Office of the
Federal Register (OFR) has regulations
concerning incorporation by reference. 1
CFR part 51. For a final rule, agencies
must discuss in the preamble to the rule
the way in which materials that the
agency incorporates by reference are
reasonably available to interested
persons, and how interested parties can
obtain the materials. Additionally, the
preamble to the rule must summarize
the material. 1 CFR 51.5(b).
In accordance with the OFR’s
requirements, section V.B of this
preamble summarizes the provisions of
ASTM F1004–19 that the Commission is
incorporating by reference. ASTM
F1004–19 is copyrighted. Before the
effective date of this rule, you may view
a copy of ASTM F1004–19 at: https://
www.astm.org/cpsc.htm. Once the rule
becomes effective, ASTM F1004–19 can
be viewed free of charge as a read-only
document at: https://www.astm.org/
READINGLIBRARY/. To download or
print the standard, interested persons
may 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. Alternatively,
interested parties may inspect a copy of
the standard by contacting Alberta E.
Mills, Division of the Secretariat, U.S.
Consumer Product Safety Commission,
4330 East West Highway, Bethesda, MD
20814; telephone: 301–504–7479; email:
cpsc-os@cpsc.gov.
X. 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). CPSC generally
considers 6 months to be sufficient time
for suppliers of durable infant and
toddler products to come into
compliance with a new standard under
section 104 of the CPSIA. Six months is
also the period that the Juvenile
Products Manufacturers Association
(JPMA) typically allows for products in
E:\FR\FM\06JYR1.SGM
06JYR1
40108
Federal Register / Vol. 85, No. 129 / Monday, July 6, 2020 / Rules and Regulations
the JPMA certification program to
transition to a new standard once that
standard is published. Accordingly, the
NPR proposed a 6-month effective date
for gates and enclosures.
We received one comment from a
trade association asking for a 12-month
effective date, stating that many of its
members would require ‘‘significant
design changes’’ and need time to make
these changes. The 30-pound push-out
force test was added to the ASTM
standard in June 2019, and CPSC’s NPR
published in July 2019. Therefore,
manufacturers of gates and enclosures
have already had almost 12 months to
address the push-out force requirements
in ASTM F1004–19. However, the final
rule also includes two alternative
requirements to provide consumers with
information or feedback on the correct
installation of pressure-mounted gates.
Additionally, staff advises that most of
the companies selling gates and
enclosures are small businesses that
may need more time to redesign and test
their gates to address the push-out force
requirement, or work with their
suppliers to purchase compliant
products. For these reasons, the
Commission will set a 12-month
effective date for the final rule.
XI. Assessment of Small Business
Impact
A. Introduction
The Regulatory Flexibility Act (RFA),
5 U.S.C. 601–612, requires that agencies
review a proposed rule and a final rule
for the rule’s potential economic impact
on small entities, including small
businesses. Section 604 of the RFA
generally requires that agencies prepare
a final regulatory flexibility analysis
(FRFA) when promulgating final rules,
unless the head of the agency certifies
that the rule will not have a significant
economic impact on a substantial
number of small entities. Staff prepared
a FRFA that is available at Tab D of
Staff’s Final Rule Briefing Package.
Based on staff’s analysis, the
Commission concludes that there would
not be a significant economic impact on
the 23 small suppliers of compliant
gates and enclosures. The Commission
also expects that the impact on
noncompliant suppliers will not be
significant for the nine firms that have
a diversified product line, or whose
gates and enclosures already meet most
of the requirements of the standard.
However, the Commission concludes
that there could be a significant
economic impact on five suppliers of
noncompliant gates and enclosures.
Additionally, staff concludes that it is
likely that all 80 of the very small,
VerDate Sep<11>2014
18:55 Jul 02, 2020
Jkt 250001
home-based suppliers will be
significantly impacted, and compliance
with the mandatory standard will
require them to stop selling gates
altogether. We provide a summary of the
FRFA below.
B. The Market for Gates and Enclosures
Section II.B of this preamble describes
the market, including a summary of
retail prices, for gates and enclosures.
The Durable Nursery Products Exposure
Survey (DNPES) found that a slight
majority (52%) of U.S. households with
children under age 6 have a gate or
enclosure in their home, with many
households owning more than one gate,
and about 11.1 million baby gates and
enclosures in use in 2013.13
C. Suppliers of Gates and Enclosures
and the Impact on Small Businesses
Staff identified 127 firms supplying
gates and enclosures to the U.S. market.
The majority of suppliers to the U.S.
market are domestic, including
domestic importers of gates
manufactured elsewhere. About 80 very
small, home-based domestic
manufacturers sell gates.14 Staff
identified another 47 firms that supply
gates and/or enclosures that are not
home-based and are generally larger
than the home-based suppliers, nearly
all of which are domestic. These firms
include both manufacturers and
importers. Because of firm size and/or
location of manufacture, 10 companies
are out of scope for this analysis on the
impact on small domestic businesses.
The 37 remaining firms are small
domestic entities, based on U.S. Small
Business Administration (SBA)
guidelines for the number of employees
in their North American Industry
Classification System (NAICS) codes.
These firms typically have at least eight
to nine gate models in their product
lines, and have much larger sales
volumes than the home-based suppliers.
Most of the small companies making or
importing gates and enclosures do not
have gates as their main product line;
rather, they sell other nursery items and
unrelated consumer products, including
toys, furniture, clothing, plastic molded
items, infant sleep products, strollers,
13 Karen Melia and Jill Jenkins ‘‘Durable Nursery
Products Exposure Survey (DNPES)—Final
Summary Report’’, prepared for the CPSC by
Westat, November 2014.
14 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). These suppliers enter and exit on
the market relatively frequently; the number found
through staff research is an estimation of the actual
number at any given time.
PO 00000
Frm 00020
Fmt 4700
Sfmt 4700
baby monitors, floor mats, bird feeders,
and car seats.
1. Very Small, Home-Based
Manufacturers
Approximately 80 very small, homebased manufacturers supply gates to the
U.S. market. Most, if not all, of these
gates would probably require substantial
modifications to comply with the final
rule; and staff expects that these firms
will stop selling gates. These firms
typically sell fewer than 100 items per
year, including products other than
gates. About 10 home-based
manufacturers sell more than 500 items
per year, including, but not limited to,
gates. About six manufacturers sell
fabric gates; the rest sell wooden or
wooden and metal gates. Because of the
cost of redesigning gates, and/or testing
for compliance with the final rule, staff
assumes that most of these sellers will
stop selling gates when the rule
becomes effective.
Staff states that small, home-based
manufacturers could re-label their gates
as pet gates, thus, reducing the
economic impact of this rule. Online
reviews of pet gates and child gates
show that some parents are already
purchasing pet gates for child use, while
pet owners are buying child gates for pet
use. However, because customers
seeking to purchase baby gates will not
necessarily consider buying a pet gate
instead of a child gate, staff concludes
that the impact would likely still be
economically significant.
2. Small Manufacturers
a. Small Manufacturers With Compliant
Gates and Enclosures
Currently, 14 of the small domestic
manufacturers produce gates or
enclosures that comply with the
previous version of the standard, ASTM
F1004–18.15 Staff assumes that
compliant firms will remain compliant
with the voluntary standard as it
evolves, because compliance is part of
an established business practice.
Because these firms are already testing
to the previous version of the ASTM
standard, staff expects that any
additional third party testing costs
would be minimal. Similarly, all of
these firms already have warning
stickers and instruction manuals that
are compliant with the previous
standard. Accordingly, staff expects the
costs of any modifications to comply
15 A 6-month delay typically occurs between the
publication of a new ASTM voluntary standard and
its adoption for compliance testing. ASTM F1004–
19 was published in June 2019, and therefore, it
became effective for testing purposes in January
2020.
E:\FR\FM\06JYR1.SGM
06JYR1
Federal Register / Vol. 85, No. 129 / Monday, July 6, 2020 / Rules and Regulations
with the new standard to be
insignificant.
Moreover, the final rule’s change in
warning label location, for gates that use
wall cups to meet the 30-pound pushout force test, and the requirement for
visual side-pressure indicators for gates
that do not use wall cups to comply
with the 30-pound push-out force test,
only apply to pressure-mounted gates.
Some manufacturers only supply
hardware-mounted gates, or have
hardware gates as most of their product
line. Other manufacturers sell pressuremounted gates with wall cups supplied,
so these manufacturers would only need
to change the label. Some manufacturers
already sell gates with visual sidepressure indicators.
b. Small Manufacturers With
Noncompliant Gates and Enclosures
Four small domestic manufacturers
produce gates and enclosures that do
not comply with the ASTM standard.
Staff does not expect the costs of any
product changes to comply with
requirements for instruction manuals
and labeling to be significant for any of
these firms, because they already have
instruction manuals and warning labels.
All four of these manufacturers appear
to be familiar with at least some aspects
of safety requirements for durable
nursery goods, including testing for
compliance. Two manufacturers were
compliant with earlier versions of the
ASTM standard for gates and
enclosures; one manufacturer claims
compliance to CPSIA section 101 and
108; and one firm manufactures other
products that comply with relevant
ASTM standards for durable nursery
products.
For the two manufacturers of
noncompliant enclosures, staff does not
expect that third party testing costs will
exceed 1 percent of revenue, because
these two manufacturers have millions
of dollars in revenue; they already
certify compliance with other ASTM
standards; and they have few gate or
enclosure models in their product lines.
For the other two small domestic
manufacturers of noncompliant gates
and enclosures, the impact may be
significant. One of the small
manufacturers makes only pressuremounted gates, although the option for
wall cups could make it relatively
inexpensive for that firm to achieve
compliance without significant
redesign. The other manufacturer sells
noncompliant gates and enclosures as
most of their product line, sells both
hardware-mounted and pressuremounted gates, and some of the gates
and enclosures appear to require
redesign to meet the standard. If this
VerDate Sep<11>2014
18:55 Jul 02, 2020
Jkt 250001
manufacturer redesigns their product,
the cost could be significant.16
3. Small Importers
a. Small Importers With Compliant
Gates and Enclosures
Staff identified nine gate/enclosure
importers currently in compliance with
ASTM F1004–18. Staff expects these
firms, like small manufacturers of
compliant gates and enclosures, to be in
compliance with ASTM F1004–19
before the draft final rule becomes
effective. Therefore, staff does not
expect the economic impact to be
significant for any of the importers with
compliant gates or enclosures. Any third
party testing costs for importers of
compliant gates and enclosures would
be limited to the incremental costs
associated with third party testing over
their current testing regime.
b. Small Importers With Noncompliant
Gates and Enclosures
Staff identified 10 small importers of
noncompliant gates and enclosures.
Seven of these firms sell many other
products. Thus, dropping gates and
enclosures from their product line or
finding a new supplier could have a
relatively minor impact on their total
revenue. Most of the noncompliant gates
and enclosures already have some
warning labels and instruction manuals;
and some claim to be tested for lead,
phthalates, and BPA. Therefore, staff
concludes that the costs of third party
testing to demonstrate compliance could
be minimal as a percentage of sales.
Staff also finds that it may be possible
for these importers to find new
suppliers of compliant gates and
enclosures.
Several importers of noncompliant
gates sell gates with multiple
extensions. The ASTM standard
requires that gates with extension
panels must be compliant in any of the
manufacturer’s recommended use
positions. Staff acknowledges that this
could increase testing costs.
Accordingly, staff believes it likely that
these firms will stop selling gates with
more than two extensions. Gates for
these importers appear to be very
similar to other compliant hardwaremounted gates; therefore, these
importers may be able to achieve
compliance cost-effectively by
importing gates with fewer extensions.
16 Firms interviewed during the development of
the draft proposed rule indicated that the cost of a
redesign could be between $400,000 and $1 million
(one firm indicated that the cost could be higher in
some cases), depending on the material with which
the product is constructed, and the extent of the
required structural changes.
PO 00000
Frm 00021
Fmt 4700
Sfmt 4700
40109
For three of the noncompliant
importers, staff believes that a
significant economic impact could
occur. One small importer of
noncompliant enclosures appears to sell
enclosures only. Finding an alternative
supplier might pose significant costs for
this firm. Perhaps this firm could find
another compliant supplier relatively
easily, given that many different brands
of imported enclosures appear very
similar; some, in fact, comply with a
previous version of the ASTM standard.
The other two small importers of
noncompliant gates that could be
impacted significantly have gates as a
large part of their product line. One of
the two small importers sells hardwaremounted gates only; while the other
importer already includes wall cups
with their pressure-mounted gates.
Therefore, staff believes their products
could be compliant without significant
redesign. However, third party testing to
demonstrate compliance may well
represent more than 1 percent of
revenue for these importers. This could
represent a significant impact, unless
their supplier absorbs the costs.
D. Other Potential Impacts
The final rule requires suppliers of
gates and enclosures to comply with the
requirements of the safety standard for
gates and enclosures, or stop selling
noncompliant gates and enclosures.
Accordingly, compliance with the final
rule could impact the price and
selection of gates and enclosures
available to consumers. Compliance
with the mandatory standard could also
impact suppliers of wall cups, by
increasing demand for their products.
Compliance with the standard could
raise the retail price of pressuremounted gates by $5 to $10. We do not
believe, however, that this will
significantly decrease sales of gates. The
price of hardware-mounted gates is
unlikely to increase; most of the
bestselling gates already cost more than
$25. Additionally, many suppliers
contract with foreign manufacturers,
and some of the companies sell in
multiple markets, including Europe,
Asia, and Canada. Having a U.S.
standard that is more stringent than, or
different from, standards in those
regions could force companies to
develop different gates for different
markets, or cause them to develop a
more costly gate that meets all the
standards.
Some manufacturers may market their
noncompliant gates as pet gates. We can
see from online reviews of pet gates and
child gates that some parents already
purchase pet gates for use with children,
and likewise, pet owners buy child gates
E:\FR\FM\06JYR1.SGM
06JYR1
40110
Federal Register / Vol. 85, No. 129 / Monday, July 6, 2020 / Rules and Regulations
for pet use. Some of the pet gates
already comply with ASTM and JPMA.
The least expensive pet gates retail for
approximately $20, more than the
current price of the least expensive
child gates. Therefore, this remarketing
likely will not have a measurable impact
on the market for either type of gate.
However, the least-expensive dog pens
are about half the price of the leastexpensive enclosures for children.
Accordingly, some manufacturers might
remarket their noncompliant enclosures
as dog pens.
E. Steps To Minimize Economic Impacts
on Small Entities
Based on staff’s recommendation and
a comment on the NPR, the final rule
has a 12-month effective date. A later
effective date could reduce the
economic impact on firms in two ways.
Firms would be less likely to experience
a lapse in production/importation,
which could result if they are unable to
comply and obtain third-party testing
within the required timeframe, or find a
new supplier. Firms could also spread
costs over a longer time period.
Suppliers interviewed for the NPR
indicated that 12 to 18 months might be
necessary, if a complete product
redesign were required. Unless
suppliers choose to add visual sidepressure indicators to a gate that does
not currently have them, or the gate/
enclosure of any type does not meet
multiple requirements in the ASTM
standard, a complete redesign should
not be necessary.
Additionally, the final rule provides
suppliers of pressure-mounted gates
with two alternatives to meet the
requirement in the final rule to improve
consumer feedback regarding
installation of pressure-mounted gates.
Firms can either: (1) Include wall cups
with the gate and place a separate
warning label regarding the importance
of installation of the wall cups on the
top rail of the gate, or (2) use visual sidepressure indicators to demonstrate that
the gate is installed correctly. The wall
cups option will not require a redesign
for gates that can meet the 30-pound
push-out test with wall cups; this option
only requires a new label on the top rail
of the gate. Suppliers that already
include effective visual side-pressure
indicators on their gates will likely also
be able to meet the standard without a
redesign. If CPSC did not provide two
options to meet the new requirement,
nearly all pressure gate manufacturers
would have been required to redesign
their gates or would have had to include
wall cups in the packaging. Providing
two alternative requirements for
pressure gate suppliers to meet the
standard reduces the impact on small
entities.
XII. Environmental Considerations
The Commission’s regulations address
whether the agency is required to
prepare an environmental assessment or
an environmental impact statement.
Under these regulations, certain
categories of CPSC actions normally
have ‘‘little or no potential for affecting
the human environment,’’ and therefore,
they do not require an environmental
assessment or an environmental impact
statement. Safety standards providing
requirements for products come under
this categorical exclusion. 16 CFR
1021.5(c)(1). The final rule for gates and
enclosures falls within the categorical
exemption.
XIII. Paperwork Reduction Act
The final 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.
The preamble to the proposed rule (84
FR 32354–55) discussed the information
collection burden of the proposed rule
and specifically requested comments on
the accuracy of our estimates. OMB
assigned control number 3041–0182 for
this information collection. We did not
receive any comment regarding the
information collection burden of the
proposal. For the final rule, CPSC
adjusts the number of small home-based
manufacturers from 83 to 80, and the
number of other suppliers from 30 to 47.
In accordance with PRA requirements,
the CPSC provides the following
information:
Title: Safety Standard for Gates and
Enclosures.
Description: The final rule requires
each gate and enclosure to comply with
ASTM F1004–19, Standard Consumer
Safety Specification for Expansion
Gates and Expandable Enclosures, with
an option to address installation issues
associated with pressure-mounted gates.
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
Number of
respondents
Frequency of
responses
Total annual
responses
Hours per
response
Total burden
hours
Burden type
Type of supplier
Labeling ...............................
Home-based manufacturers
Other Suppliers ..................
80
47
2
8
160
376
7
1
1,120
376
Labeling Total ..............
.............................................
........................
........................
........................
........................
1,496
Instructional literature ..........
Home-based manufacturers
80
2
50
100
8,000
Total Burden .........
.............................................
........................
........................
........................
........................
9,496
Our estimate is based on the
following:
VerDate Sep<11>2014
18:55 Jul 02, 2020
Jkt 250001
Two groups of firms that supply gates
and enclosures to the U.S. market may
PO 00000
Frm 00022
Fmt 4700
Sfmt 4700
need to modify their existing warning
labels. The first are very small, home-
E:\FR\FM\06JYR1.SGM
06JYR1
Federal Register / Vol. 85, No. 129 / Monday, July 6, 2020 / Rules and Regulations
based manufacturers (80), 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 gate 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, homebased manufacturers is 7 hours per
model × 80 entities × 2 models per
entity = 1,120 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 (47). These
are also mostly small domestic firms,
but they are not home-based firms, and
they do not operate at the low
production volume of the home-based
firms. For this second group, all with
existing warning labels on their
products, and who 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 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 hour per model × 47 entities × 8
models per entity = 376 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 (1,120
burden hours) + non-home-based
manufacturers and importers (376
burden hours) = 1,496 burden hours. We
estimate the hourly compensation for
the time required to create and update
labels is $34.26 (U.S. Bureau of Labor
Statistics, ‘‘Employer Costs for
Employee Compensation,’’ March 2020,
Supplementary Table 9, total employer
costs for employees in private industry:
https://www.bls.gov/ncs/). Therefore, the
estimated annual cost to industry
associated with the labeling
requirements is $51,253 ($34.26 per
hour × 1,496 hours = $51,252.96). 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
VerDate Sep<11>2014
18:55 Jul 02, 2020
Jkt 250001
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 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, over time, to vary
substantially, based on CPSC staff’s
review of the marketplace, currently,
there are approximately 80 home-based
suppliers of gates and/or enclosures
operating in the U.S. market. These
firms, on average, typically supply two
gates. Therefore, the costs for these
firms of designing an instruction
manual for their products could be as
high as $274,080 (50 hours per model ×
80 entities × 2 models per entity = 8,000
hours × $34.26 per hour = $274,080).
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 are already likely
providing user instruction manuals 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 9,496 hours at a cost of
$325,333 annually. In compliance with
the Paperwork Reduction Act of 1995
(44 U.S.C. 3507(d)), we have submitted
the information collection requirements
of this final rule to OMB.
XIV. Preemption
Section 26(a) of the CPSA, 15 U.S.C.
2075(a), provides that when 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 Commission 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 standards.’’ Therefore,
PO 00000
Frm 00023
Fmt 4700
Sfmt 4700
40111
the preemption provision of section
26(a) of the CPSA applies to this final
rule issued under section 104.
XV. Amendment to 16 CFR Part 1112
To Include NOR for Gates and
Enclosures
The CPSA establishes certain
requirements for product certification
and testing. 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 Commission, must be
certified as complying with all
applicable CPSC-enforced requirements.
15 U.S.C. 2063(a). Certification of
children’s products subject to a
children’s product safety rule must be
based on testing conducted by a CPSCaccepted third party conformity
assessment body. 15 U.S.C. 2063(a)(2).
The Commission must publish an NOR
for the accreditation of third party
conformity assessment bodies to assess
conformity with a children’s product
safety rule to which a children’s product
is subject. 15 U.S.C. 2063(a)(3). The
final rule for gates and enclosures, to be
codified at 16 CFR part 1239, is a
children’s product safety rule that
requires the issuance of an NOR.
The Commission published a final
rule, Requirements Pertaining to ThirdParty Conformity Assessment Bodies, 78
FR 15836 (March 12, 2013), which is
codified at 16 CFR part 1112 (referred to
here as part 1112). Part 1112 became
effective on June 10, 2013, and
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. Part 1112
also codifies a list of all of the NORs
that the CPSC issued when CPSC
published part 1112. All NORs issued
after the Commission published part
1112 require the Commission to amend
part 1112. Accordingly, the Commission
amends part 1112 to include the safety
standard for gates and enclosures in the
list of other children’s product safety
rules for which the CPSC has issued
NORs.
Laboratories applying for acceptance
as a CPSC-accepted third-party
conformity assessment body to test to
the new standard are 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, the
laboratory 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
E:\FR\FM\06JYR1.SGM
06JYR1
40112
Federal Register / Vol. 85, No. 129 / Monday, July 6, 2020 / Rules and Regulations
rules listed for the laboratory on the
CPSC’s website at: www.cpsc.gov/
labsearch.
The Commission certified in the NPR
that the proposed NOR for gates and
enclosures would not have a significant
impact on a substantial number of small
laboratories. 84 FR 32356. No
substantive factual changes have
occurred since the NPR was published,
and CPSC did not receive any comments
regarding the NOR. Therefore, for the
final rule, the Commission continues to
certify that amending part 1112 to
include the NOR for the gates and
enclosures final rule will not have a
significant impact on a substantial
number of small laboratories.
XVI. Congressional Review Act
The Congressional Review Act (CRA;
5 U.S.C. 801–808) states that, before a
rule may take effect, the agency issuing
the rule must submit the rule, and
certain related information, to each
House of Congress and the Comptroller
General. 5 U.S.C. 801(a)(1). The
submission must indicate whether the
rule is a ‘‘major rule.’’ The CRA states
that the Office of Information and
Regulatory Affairs (OIRA) determines
whether a rule qualifies as a ‘‘major
rule.’’ Pursuant to the CRA, this rule
does not qualify as a ‘‘major rule,’’ as
defined in 5 U.S.C. 804(2). To comply
with the CRA, the Office of the General
Counsel will submit the required
information to each House of Congress
and the Comptroller General.
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 amends Title
16 of the Code of Federal Regulations as
follows:
PART 1112—REQUIREMENTS
PERTAINING TO THIRD PARTY
CONFORMITY ASSESSMENT BODIES
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).
2. Amend § 1112.15 by adding
paragraph (b)(49) to read as follows:
■
VerDate Sep<11>2014
18:55 Jul 02, 2020
Jkt 250001
§ 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.
*
*
*
*
*
■ 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).
§ 1239.1
Scope.
This part establishes a consumer
product safety standard for gates and
enclosures.
§ 1239.2 Requirements for gates and
enclosures.
(a) Except as provided in paragraph
(b) of this section, 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 (ASTM F1004–19). 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; https://
www.astm.org. You may also inspect a
copy: Electronically at https://
www.astm.org/READINGLIBRARY/; in
person at the Division of the Secretariat,
U.S. Consumer Product Safety
Commission, Room 820, 4330 East West
Highway, Bethesda, MD 20814,
telephone: 301–504–7479, email: cpscos@cpsc.gov; or in person at the
National Archives and Records
Administration (NARA). For
information on the availability of this
material at NARA, email fedreg.legal@
nara.gov, or go to: https://
www.archives.gov/federal_register/
code_of_federalregulations/ibr_
locations.html.
(b) Comply with ASTM F1004–19
with the following additions or
exclusions:
(1) Instead of complying with section
3.1.3 of ASTM F1004–19, comply with
the following:
(i) 3.1.3 conspicuous, adj—visible
when the gate/expandable enclosure is
PO 00000
Frm 00024
Fmt 4700
Sfmt 4700
in all manufacturer’s recommended use
positions, to a person standing near the
gate/expandable enclosure at any one
position around the gate/expandable
enclosure, but not necessarily visible
from all positions.
(ii) [Reserved]
(2) Add the following to paragraphs to
section 3.1 of ASTM F1004–19:
(i) 3.1.16 visual side-pressure
indicator, n—a warning system, device,
or provision using contrasting colors,
lights, or other similar means designed
to visually alert the installer/user to the
status of the side pressure of a pressure
mounted gate during installation and
use.
(ii) 3.1.17 side pressure, n—force
required, at each contact location of the
gate and mounting surface, to meet the
requirements of 6.3 as determined by
the manufacturer.
(3) Add the following paragraphs to
section 6 of ASTM F1004–19:
(i) 6.8 Visual Side-Pressure
Indicators—Any pressure-mounted gate
that does not require the use of
Pressure-Mounted Gate-Mounting
Hardware per 6.7, to meet the
performance requirements in 6.3.1, shall
include Visual Side-Pressure Indicators.
(ii) 6.8.1 Visual Side-Pressure
Indicators shall be conspicuous and
readily identifiable to a person
installing and standing near the gate.
(iii) 6.8.2 Visual Side-Pressure
Indicators shall monitor pressure for
each point of contact with the mounting
surface utilizing one or more of the
following three options. Such
indicators, when the gate is tested in
accordance with 7.9, shall indicate
when the required side pressure has
been attained upon installation of the
gate, and continue to display the side
pressure status while the gate is in a
manufacturer’s recommend use
position.
(iv) 6.8.2.1 A single visual sidepressure indicator for each individual
contact point.
(v) 6.8.2.2 A single visual sidepressure indicator for each individual
rail (top and bottom), so the opposing
horizontal contact points are addressed.
(vi) 6.8.2.3 A single visual sidepressure indicator for the entire gate.
(4) Instead of complying with section
7.9.1.2 of ASTM F1004–19, comply with
the following:
(i) 7.9.1.2 Follow the manufacturer’s
installation instructions when installing
the gate in the center of the test opening.
For pressure-mounted gates with visual
side-pressure indicators, ensure the
visual side-pressure indicators are
displaying the proper status per
manufacturer’s instructions.
(ii) [Reserved]
E:\FR\FM\06JYR1.SGM
06JYR1
Federal Register / Vol. 85, No. 129 / Monday, July 6, 2020 / Rules and Regulations
(5) Instead of complying with NOTE
11 of ASTM F1004–19, comply with the
following:
(i) Note 11—Address means that
verbiage other than what is shown can
be used as long as the meaning is the
same or information that is product
specific is presented. Brackets indicate
that optional wording may be used at
the manufacturer’s discretion if another
identifier is more appropriate.
(ii) [Reserved]
(6) Do not comply with section 8.5.3
of ASTM F1004–19.
(7) Add the following paragraphs to
section 8.5 of ASTM F1004–19:
(i) 8.5.8 Pressure-mounted gates that
provide wall cups or other mounting
hardware to meet the requirements of
section 6.3 shall have the following
warning in the location specified: You
MUST install [wall cups] to keep gate in
place. Without [wall cups], child can
push out and escape.
(ii) 8.5.8.1 This warning shall be
separate from all other warnings
required on the product and shall not
include any additional language.
(iii) 8.5.8.2 This warning shall be on
the top rail.
(iv) 8.5.8.3 This warning shall be as
close as possible to the side of the
product where the locking mechanism
is located. If the locking mechanism is
in the center of the product, then this
warning shall be adjacent to the
mechanism on either side of it.
(8) Add the following paragraph to
section 9 of ASTM F1004–19:
(i) 9.5. For pressure-mounted gates
with visual side-pressure indicators, the
instructions shall describe the function,
use, and importance of the visual sidepressure indicators and shall describe
how to make adjustments to meet the
side-pressure requirements. Instructions
shall include a reminder to routinely
check the status of the side pressure
indicators during ongoing use of gate.
(ii) [Reserved]
(9) Add the following paragraph to
section X1.2.5 of ASTM F1004–19:
(i) X1.2.5.4 The visual side-pressure
indicators requirement in 6.8 is to
address incidents with pressuremounted gates, where consumers had
difficulty properly installing the gate or
uncertainty in the security of the gate,
which may lead to the gate being
‘‘pushed out,’’ ‘‘pulled down,’’ or
‘‘knocked over’’ by children.
(ii) [Reserved]
Alberta E. Mills,
Secretary, Consumer Product Safety
Commission.
DEPARTMENT OF ENERGY
Federal Energy Regulatory
Commission
18 CFR Parts 153 and 157
[Docket No. RM20–15–000; Order No. 871]
Limiting Authorizations To Proceed
With Construction Activities Pending
Rehearing
Federal Energy Regulatory
Commission, Department of Energy.
ACTION: Final rule.
AGENCY:
The Federal Energy
Regulatory Commission (Commission)
issues this final rule to amend its
regulations to preclude the issuance of
authorizations to proceed with
construction activities with respect to
natural gas facilities authorized by order
issued pursuant to section 3 or section
7 of the Natural Gas Act until either the
time for filing a request for rehearing of
such order has passed with no rehearing
request being filed or the Commission
has acted on the merits of any rehearing
request.
DATES: This rule is effective August 5,
2020.
SUMMARY:
FOR FURTHER INFORMATION CONTACT:
Tara DiJohn, Office of the General
Counsel, Federal Energy Regulatory
Commission, 888 First Street NE,
Washington, DC 20426, (202) 502–
8671, tara.dijohn@ferc.gov.
SUPPLEMENTARY INFORMATION:
I. Introduction
1. By this final rule, the Federal
Energy Regulatory Commission
(Commission or agency) is revising its
regulations to preclude the issuance of
authorizations to proceed with
construction activities with respect to a
Natural Gas Act (NGA) section 3
authorization or section 7(c) certificate
order until the Commission acts on the
merits of any timely-filed request for
rehearing or the time for filing such a
request has passed. This rule ensures
that construction of an approved natural
gas project will not commence until the
Commission has acted upon the merits
of any request for rehearing. The rule
imposes no new obligations on the
public.
II. Background
2. The NGA vests the Commission
with jurisdiction over the transportation
and wholesale sale of natural gas in
interstate commerce.1 To meet these
aims, the NGA declares that ‘‘the
[FR Doc. 2020–12561 Filed 7–2–20; 8:45 am]
1 15
BILLING CODE 6355–01–P
VerDate Sep<11>2014
18:55 Jul 02, 2020
Jkt 250001
PO 00000
U.S.C. 717(a).
Frm 00025
Fmt 4700
Sfmt 4700
40113
business of transporting and selling
natural gas for ultimate distribution to
the public is affected with [the] public
interest.’’ 2
3. Before a company can construct a
natural gas pipeline, it must obtain
approval from the Commission under
NGA section 7(e), which provides that
the Commission ‘‘shall’’ issue a
certificate if it determines that a
proposed pipeline ‘‘is or will be
required by the present or future public
convenience and necessity.’’ 3
4. If the Commission grants a
certificate of public convenience and
necessity, the NGA authorizes the
certificate holder to exercise eminent
domain authority if it ‘‘cannot acquire
by contract, or is unable to agree with
the owner of property to the
compensation to be paid for, the
necessary right-of-way to construct,
operate, and maintain a pipe line or
pipe lines for the transportation of
natural gas[.]’’ 4
5. Separately, NGA section 3 prohibits
the import or export of natural gas
between the United States and a foreign
nation without ‘‘first having secured an
order of the Commission authorizing it
to do so.’’ 5 NGA section 3 authority is
divided between the Department of
Energy, which oversees the import or
export of the natural gas commodity,6
and the Commission, which oversees
the siting, construction, and operation
of import or export facilities.7 The
Commission ‘‘shall’’ authorize proposed
import or export facilities unless it finds
that construction and operation of the
proposed facilities ‘‘will not be
consistent with the public interest.’’ 8
Unlike section 7, section 3 does not
provide for the acquisition of lands
through eminent domain.
6. Pursuant to the NGA, the
Commission can approve a proposed
2 Id.
3 Id.
717f(e).
717f(h). The NGA specifies that any such
condemnation proceedings shall take place in the
federal court for the district in which the property
is located or in the relevant state court.
5 15 U.S.C. 717b.
6 Id. 717b(a)–(c). In 1977, Congress transferred the
regulatory functions of NGA section 3 from the
Federal Power Commission to the Department of
Energy. 42 U.S.C. 7151(b) (Department of Energy
Organization Act). The Department of Energy
delegated back to the newly created Federal Energy
Regulatory Commission the limited authority under
NGA section 3(e) to approve the physical facilities.
15 U.S.C. 717b(e).
7 15 U.S.C. 717b(e). See DOE Delegation Order
No. 00–004.00A (effective May 16, 2006) (renewing
delegation to the Commission authority over the
construction and operation of LNG facilities); see
also 43 FR 47,769, 47,772 (Oct. 17, 1978) (1978
delegation); 42 U.S.C. 7172(e) (Commission
authority includes any matter assigned by the
Department).
8 15 U.S.C. 717b(a).
4 Id.
E:\FR\FM\06JYR1.SGM
06JYR1
Agencies
[Federal Register Volume 85, Number 129 (Monday, July 6, 2020)]
[Rules and Regulations]
[Pages 40100-40113]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-12561]
=======================================================================
-----------------------------------------------------------------------
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: Final rule.
-----------------------------------------------------------------------
SUMMARY: Pursuant to the Consumer Product Safety Improvement Act of
2008 (CPSIA), the U.S. Consumer Product Safety Commission (CPSC) is
issuing this final rule establishing a safety standard for gates and
enclosures that are intended to confine a child. The CPSC is also
amending its regulations regarding third party conformity assessment
bodies to include the safety standard for gates and enclosures in the
list of notices of requirements (NORs).
DATES: This rule will become effective July 6, 2021. The incorporation
by reference of the publication listed in this rule is approved by the
Director of the Federal Register as of July 6, 2021.
FOR FURTHER INFORMATION CONTACT: Justin Jirgl, Compliance Officer, U.S.
Consumer Product Safety Commission, 4330 East West Highway, Bethesda,
MD 20814; telephone: 301-504-7814; 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. Standards issued under section 104 of the CPSIA are to be
``substantially the same as'' the applicable voluntary standards or
more stringent than the voluntary standard, if the Commission
determines 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,'' and the statute specifies 12 categories of products
that are included in the definition. Section 104(f)(2)(E) of the CPSIA
specifically identifies ``gates and other enclosures for confining a
child'' as a durable infant or toddler product. Additionally, the
Commission's regulation requiring product registration cards defines
``gates and other enclosures for confining a child'' as a durable
infant or toddler product subject to the registration card rule. 74 FR
68668 (Dec. 29, 2009); 16 CFR 1130.2(a)(5).
As required by section 104(b)(1)(A) of the CPSIA, the Commission
consulted with manufacturers, retailers, trade organizations,
laboratories, consumer advocacy groups, consultants, and the public to
develop this rule, largely through ASTM's standard development process.
On July 8, 2019, the Commission issued a notice of proposed rulemaking
(NPR) for gates and enclosures.\1\ 84 FR 32346. The NPR proposed to
incorporate by reference the voluntary standard developed by ASTM
International, ASTM F1004-19, Standard Consumer Safety Specification
for Expansion Gates and Expandable Enclosures (ASTM F1004-19).
Additionally, the NPR stated that the Commission agreed that a new
requirement in ASTM F1004-19 that all gates, including pressure-mounted
gates, meet a 30-pound push-out force test at five test locations, will
improve children's safety if the gate is installed correctly. 84 FR at
32351. The NPR discussed concerns with consumer awareness of correct
pressure-mounted gate installation, and discussed improvements to ASTM
F1004-19 to increase consumer awareness, including the use of visual
side-pressure indicators and a separate warning label along the top
rail of the gate. Id. at 32351-52. The NPR stated that staff would
continue to work with ASTM to improve consumer awareness of the
importance of proper installation of pressure-mounted gates, and
requested comment on improved warnings and visual side-pressure
indicators. Id. The Commission did not receive any comments.
---------------------------------------------------------------------------
\1\ Staff's June 19, 2019 Briefing Package for the NPR (Staff's
NPR Briefing Package) is available at: https://www.cpsc.gov/s3fs-public/Proposed%20Rule%20-%20Safety%20Standard%20for%20Gates%20and%20Enclosures%20-%20June%2019%202019.pdf.
---------------------------------------------------------------------------
Since publication of the NPR, CPSC staff has continued to work with
the ASTM subcommittee on gates and enclosures on visual side-pressure
indicators and a separate warning label, as outlined in the NPR.
Although the ASTM standard has not yet been updated, the ASTM
subcommittee is moving forward to include a separate warning label (for
pressure-mounted gates that rely on the use of wall cups to meet the
30-pound push-out force test), and has started moving forward to
include visual side-pressure indicators (for pressure-mounted gates
that do not use wall cups to meet the 30-pound push-out force test) to
improve correct installation of pressure-mounted gates. Accordingly,
for the final rule setting a safety standard for gates and enclosures,
the Commission incorporates by reference ASTM F1004-19, with the
following additional requirements, depending on the design of a
pressure-mounted gate, to further reduce the risk of injury associated
with incorrectly installed pressure-mounted gates:
(1) For pressure-mounted gates that include wall cups with the
product to meet the 30-pound push-out force test,\2\ the gates must
include a separate warning label in a conspicuous location on the top
rail of the gate regarding correct installation using wall cups, or
---------------------------------------------------------------------------
\2\ Note that section 6.7 of ASTM F1004-19 already requires that
pressure-mounted gates that rely on the use of wall cups to meet the
30-pound push-out force test in section 6.3 of the standard to
include the wall cups and necessary hardware to install them in the
product packaging.
---------------------------------------------------------------------------
(2) For pressure-mounted gates that do not use wall cups to meet
the 30-pound push-out force test, the gates must use visual side-
pressure indicators to provide consumers feedback as to whether the
gate is correctly installed.
Under section 14 of the CPSA, the Commission promulgated 16 CFR
part 1112 to establish requirements for accreditation of third party
conformity assessment bodies (or testing laboratories) to test for
conformity with a children's product safety rule. The final rule amends
the list of notices of requirements (NORs) issued by the Commission in
16 CFR part 1112 to include the safety standard for gates and
enclosures.
CPSC staff's briefing package supporting this rule (Staff's Final
Rule Briefing Package), is available at: https://www.cpsc.gov/s3fs-public/Final%20Rule%20-%20Safety%20Standard%20for%20Gates%20and%20Enclosures.pdf?lHExt6trsEuD56jiQTi7Ab0TjzdVQ_HH.
II. Product Description
A. Definition of ``Gates and Other Enclosures''
ASTM F1004-19 defines an ``expansion gate'' as a ``barrier intended
[[Page 40101]]
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 age 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).\3\ 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 surround an area or play-space completely
to confine young children. Similarly, all children's gates and
enclosures, whether they expand or not, can be removed by older persons
who are able to operate the locking mechanism.
---------------------------------------------------------------------------
\3\ 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.
---------------------------------------------------------------------------
CPSC staff's review of enclosures shows that all enclosures are
expandable. Staff's review of gates showed that there are some non-
expandable, fixed-sized gates available for sale.\4\ 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.
---------------------------------------------------------------------------
\4\ The majority of non-expandable, fixed-size gates are sold by
home-based manufacturers with very low sales volumes.
---------------------------------------------------------------------------
This final rule addresses all children's gates and enclosures
intended for confining a child, including non-expandable, fixed-sized
gates and enclosures. The scope of the rule includes all products
within ASTM F1004-19.
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 also have a means of egress
(i.e., some self-supporting barriers have egress panels that resemble
gates). 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 mark their walls permanently. 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 127 firms supply gates and enclosures to the U.S.
market. The majority of suppliers to the U.S. market are domestic,
including domestic importers of gates manufactured elsewhere. About 80
very small, home-based domestic gate manufacturers exist, as well as 37
domestic entities that are considered small based on the U.S. Small
Business Administration (SBA) guidelines. The remaining 10 suppliers
that are not small domestic businesses include four large domestic
firms and six foreign firms. In 2013, approximately 11.1 million gates/
enclosures were in use in U.S. households with children under the age
of 6, according to the CPSC's 2013 Durable Nursery Product Exposure
Survey (DNPES).
Gates and enclosures vary widely in price. Consumers can purchase
simple plastic or wooden pressure-mounted gates for as little as $10,
while hardware-mounted gates with multiple extensions, and gates
intended for daycare use, can cost as much as $700. Most gates retail
for $25 to $200. Retail prices for enclosures and modular products that
can operate as an enclosure or a gate range from $60 to $550. Fabric
gates made by home-based manufacturers typically cost under $50, while
custom-made wooden gates by home-based manufacturers can run more than
$500 for gates with solid hardwood panels and decorative metal
elements. Pressure-mounted gates, particularly hard plastic-molded
gates, tend to be the least expensive gates and are sometimes marketed
as travel gates. Hardware-mounted gates tend to be slightly more
expensive than pressure-mounted gates, although there are many
hardware-mounted gates available for less than $40.
The least expensive pressure-mounted gates are a popular choice
with consumers, but price may not be the predominant criterion for many
customers. Out of several hundred models of gates available on the site
of one prominent internet retailer in January 2020, the 10 best-selling
baby safety gates ranged in price from $12 to $85. On another major big
box store website, the top 10 best-selling gates ranged in price from
$17 to $100. In both cases, the best-selling gates included hardware-
mounted gates and pressure-mounted gates. All of the best-selling gates
were from suppliers that currently claim both ASTM compliance and JPMA
certification.
III. Incident Data
A. CPSRMS Data
CPSC staff reviewed incident data associated with children's gates
and enclosures as reported through the Consumer Product Safety Risk
Management System (CPSRMS).\5\ Although gates and enclosures 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 securely to prevent injuries.
CPSC staff reviewed the incident data involving older children and
adults to determine hazard patterns. However, staff reported incident
data in the NPR and this final rule only for injuries sustained by
children younger than 5 years of age. Gates and enclosures are not
intended for children older than 23 months, and the statutory
definition of ``durable infant or toddler products'' states that the
products are ``intended for use, or that may be reasonably expected to
be used, by children under the age of 5 years.'' Section 104(f)(1) of
the CPSIA.
---------------------------------------------------------------------------
\5\ CPSC staff searched the CPSC database CPSRMS. 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, the reported incidents provide a minimum
number of deaths and incidents occurring during this period and
illustrate the circumstances involved in the incidents related to
children's gates and enclosures.
Staff also reviewed national injury estimates, discussed below
in III.B of this preamble.
---------------------------------------------------------------------------
The NPR stated that the Commission was aware of 436 incidents in
the CPSRMS data, including 108 reported injuries and 19 reported
fatalities
[[Page 40102]]
involving child gates and enclosures, occurring from January 1, 2008 to
October 31, 2018. Since that data extraction, CPSC staff identified an
additional 42 incidents in the CPSRMS data, occurring from November 1,
2018 to January 7, 2020, including four reported injuries and three
reported fatalities. Accordingly, for the final rule, the Commission is
aware of 478 incidents in the CPSRMS data, including 112 reported
injuries and 22 fatalities involving gates and enclosures, which
occurred from January 1, 2008 to January 7, 2020. Because reporting is
ongoing, the number of reported incidents during this period may change
in the future.
1. Fatalities
The Commission is aware of 22 deaths that occurred between January
1, 2008 and January 7, 2020. The NPR discussed 19 deaths, stating that
17 of the deaths were associated with the use of a gate, while two were
associated with an enclosure. Fifteen of the 19 decedents discussed in
the NPR 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 somehow was opened without the caregiver's knowledge (10
incidents); the gate/enclosure was knocked down or pushed out by the
decedent because of 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. 84 FR at 32347.
CPSC staff identified three additional fatal incidents since the
NPR, reported to have occurred during the period November 1, 2018 to
January 7, 2020. All three incidents involved a gate. The new
fatalities include: A 2-year-old who drowned after climbing out of a
crib, knocking over a baby gate, pushing open a living room door, and
gaining access to an in-ground pool; a 23-month-old who suffocated in a
gate opening while attempting to climb out of a crib after a baby gate
was placed over the crib; and a 2-year-old who suffered asphyxiation
after her neck was caught between a baby gate, fabric sheet, and door
frame.
2. Nonfatalities
The NPR described 417 nonfatal incidents, and CPSC is aware of an
additional 39 nonfatal incidents since the NPR, for a total of 456
nonfatal incidents that reportedly occurred between January 1, 2008 and
January 7, 2020. Of the total 456 nonfatal incidents reported, 134
incidents described an injury to a child younger than 5 years of age.
The NPR stated that three of the nonfatal 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, who each suffered a near-drowning episode, and another
2-year-old ended up in a coma following 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. 84 FR at 32347-48. Since the NPR, CPSC is not
aware of any additional hospitalizations associated with the use of
gates or enclosures.
The NPR stated that 15 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. Id. Since the NPR, CPSC is not aware of any
additional children who were treated and released from a hospital ED
associated with the use of gates or enclosures.
Among the remaining injury reports described in the NPR, some
specifically mentioned the type of injury, while others only mentioned
an injury, but no specifics about the injury. Head injuries,
concussions, teeth avulsions, sprains, abrasions, contusions, and
lacerations were some of the common injuries reported at the time of
the NPR. Id. Since the NPR, four of the additional 39 nonfatal
incidents reported an injury to a child younger than 5 years of age.
Two reported injuries involved falls related to the failure or collapse
of gates and enclosures, resulting in one child bumping her face on the
floor after mounting an enclosure that collapsed under her weight, and
one child sustaining minor bruises after falling down 14 steps when a
gate failed. In two additional reported injuries, children caught their
fingers in the gaps of a gate, resulting in a swollen finger, and
another child who almost broke his finger in the clasp used to latch a
gate.
The remaining 344 nonfatal incidents associated with gates and
enclosures that occurred from January 1, 2008 through January 7, 2020,
reported that no injury had occurred to a child younger than 5 years of
age, or provided no information about any injury. However, staff found
that many of the incident descriptions indicated potential injury or
death resulting from sharp edges, pinching, falls, entrapments, and
choking.
B. National Injury Estimates
CPSC staff also reviewed injury estimates from the National
Electronic Injury Surveillance System (NEISS), a statistically valid
injury surveillance system.\6\ NEISS injury data are gathered from EDs
of hospitals selected as a probability sample of all the U.S. hospitals
with EDs. As described in the NPR briefing package, staff estimated
that a total of 22,840 injuries (sample size=820, coefficient of
variation=0.10) related to safety gates and enclosures were treated in
U.S. hospital emergency departments from 2008 to 2017. Using NEISS data
finalized in spring 2019, staff's update includes injury estimates for
2018, resulting in an estimated total of 25,430 injuries (sample
size=928, coefficient of variation=0.11) related to safety gates and
enclosures treated in U.S. hospital emergency departments from 2008 to
2018. Staff did not observe a statistically significant trend for this
period.
---------------------------------------------------------------------------
\6\ 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.
---------------------------------------------------------------------------
Staff found no recorded fatalities in NEISS. Ninety-five percent of
children who went to a hospital ED were treated and released. The
breakdown by age in the NEISS data indicates: 18 percent of all
children were under 1 year old; 40 percent were at least 1 year old,
but less than 2 years old; and 42 percent were more than 2 years old,
but less than 5 years old. Due to the limited information from NEISS
injury descriptions, which are brief and injury-focused, staff could
not feasibly characterize hazard patterns similar to the
characterization provided in section IV of this preamble for CPSRMS
incident data. Based on the limited information provided, staff found
the most frequent NEISS injury characteristics:
Hazard--falls (58 percent) and impact on gate/enclosure
(30 percent) were the most common. Approximately 11 percent of the
impact injuries occurred when a child on a flight of steps fell and hit
a safety gate at the bottom of the stairs. Most of the falls occurred:
[cir] When a child attempted to climb over or get through a
barrier;
[cir] when a child managed to unlatch a gate/enclosure;
[cir] when a gate failed to stay upright and locked;
[[Page 40103]]
[cir] when a child-carrying-adult tripped over a gate/enclosure; or
[cir] when a child pulled on a gate/enclosure.
Injured body part--head (39 percent), face (21 percent),
and mouth (10 percent).
Injury type--lacerations (28 percent), internal organ
injury (24 percent), and contusions/abrasions (18 percent).
IV. Hazard Pattern Identification
In the NPR briefing package, staff reviewed the CPSRMS data and
identified hazard patterns for the 436 reported incidents (19 fatal and
417 nonfatal) associated with the use of safety gates and enclosures.
For the final rule, staff reviewed and incorporated the additional 42
incidents found in the CPSRMS data since the NPR, for a total of 478
reported incidents (22 fatal and 456 nonfatal, including 112 reported
injuries) associated with the use of gates and enclosures that occurred
from January 1, 2008 to January 7, 2020. Staff found that the hazard
patterns largely followed those described in the NPR, except no new
incidents were identified in the following categories: Miscellaneous
other issues and consumer comments, climb-over, caregiver mis-step,
repaired/modified, or undetermined issues. Staff grouped the hazard
patterns into three categories: Product-related, non-product-related,
and undetermined. Most of the identified hazard patterns (95%) are
product-related hazards. A description of the staff-identified hazard
patterns, in order of descending frequency, follows.
A. Product-Related
Hardware issues: Of the 478 incidents, 183 (38%) reported
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, or a suction cup coming loose.
These hardware failures were associated with 39 injuries, including
bruises, 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 478 incidents, 109 (23%) reported
slats breaking or detaching from the safety gate or enclosure, or
splitting. Sixteen injuries were reported in this category, resulting
in contusions/abrasions or lacerations. Once the slat(s) broke, the
child got injured on it, fell forward through the gap created, or lost
balance and fell backwards. One injury incident resulted in treatment
at a hospital ED.
Poor quality material and finish: Of the 478 incidents, 58
(12%) 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 478 incident reports, 49 (10%)
indicated some problems with the design of the gate or enclosure. The
reported problems involved:
[cir] Opening sizes between slats or enclosure panels that allowed,
or could allow, entrapment of a child's limb or head;
[cir] pinch-points created near an L-shaped clasp on a gate, and
during the sliding action of a door on a gate or enclosure;
[cir] a specific design, which created a foot-hold that a child
could use to climb over the safety gate;
[cir] a specific design that posed a trip hazard when the gate was
in the open position;
[cir] a gate's retraction system, where the gate fails to retract
correctly after installation;
[cir] drilled holes used for connecting gates, which allowed
plastic shavings to accumulate; or
[cir] a specific design involving rails at the bottom of a gate at
several different heights, posing a trip hazard.
Staff identified 21 injuries and one death in this category. The
injuries included swollen or pinched fingers from inserting them into
openings of a gate; three fractures of the finger and one severed
fingertip, all treated at a hospital ED. The death resulted from
entrapment in a gate, fabric sheet, and door frame.
Installation problems: Of the 478 incident reports, 21
(4%) 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 ``pushed out,'' ``pulled
down,'' or ``knocked down.''
Five drowning fatalities were reported in this category. In
addition, staff identified 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 478 incident reports (1%) fall within the miscellaneous category,
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. One unspecified injury falls
within this category.
Instability issues in enclosures: Four of the 478
incidents (<1%) reported problems with flimsy and/or unstable
enclosures that failed to hold together. Two laceration/contusion
injuries and one facial injury were reported in this category.
Multiple problems from among the above: Twenty-two of the
478 incident reports (5%) described two or more problems from the
preceding product-related issues. Two minor injuries were reported in
this category.\7\
---------------------------------------------------------------------------
\7\ Redistributing these 22 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 this
occurrence, the 20 incidents were grouped in a separate subcategory.
---------------------------------------------------------------------------
B. Non-Product-Related
Twelve of the 478 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;
Four incidents reported misuse of gates in a hazardous
manner; and
One report involving a gate previously repaired/modified
and structurally compromised.
Nine deaths are included in this category: Four due to drowning,
four 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 forehead concussion.
C. Undetermined
For 13 of the 478 incident reports (3%), staff had insufficient
information on the scenario-specific details to
[[Page 40104]]
determine definitively whether the product failed or user error
resulted in the incident. Accordingly, 13 incidents fall within the
undetermined category. Staff found seven drowning deaths 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
For the NPR, CPSC staff reviewed recalls involving children's gates
and enclosures from January 2008 to December 2018. 84 FR at 32349.
During that period, CPSC announced five recalls involving baby gates
and one recall involving an enclosure. More than 1 million units
(1,318,180), associated with 215 incidents and 13 injuries were
recalled for the following hazards to children: Fall, entrapments,
tripping, and lacerations. No additional recalls involving gates or
enclosures have occurred since December 2018.
V. Overview of 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
to clarify the standard. Revisions 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 surfaces, 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.\8\ The current voluntary standard is ASTM F1004-19,
which was approved on June 1, 2019.
---------------------------------------------------------------------------
\8\ A more detailed summary of the changes to ASTM F1004 can be
found on page 8 of Staff's Final Rule Briefing Package.
---------------------------------------------------------------------------
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. The scope of the standard states that it includes products
known as expansion gates and expandable enclosures, or known 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. For example, section 3.1.7 of the 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
(see 1.2), but which can be removed by older persons who are able to
operate the locking mechanism.''
General Requirements. This section addresses numerous hazards with
general requirements, most of which are also found in the other ASTM
juvenile product standards. ASTM F1004-19 contains the following
requirements to address safety hazards common to many juvenile
products:
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 in which 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 passageways to be blocked off,
for example, a 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. This requirement is intended to
prevent child 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 child 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 in which
children were found with their heads entrapped under a gate, after
having 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 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
[[Page 40105]]
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. Cycling egress panels for 2,000 times tests the
durability of gates or enclosures having egress panels that 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 close automatically 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 closes
completely and locks as it is expected and advertised to do, thereby
reducing the likelihood of a child accessing potentially hazardous
conditions on the other side of an unintentionally unsecured gate.
Push-out force strength: This test must be conducted in
five specified locations: The four corners of the gate, as well as the
center. The test requires that a horizontal push-out force be applied
five times to each of the test locations, and that the maximum force be
applied before the gate pushes out of the test fixture. The test
requires that data be recorded and averaged for each test location (up
to a maximum of 45 pounds). The maximum force of 45 pounds was selected
because it simulates the effects of the largest intended occupant's
weight. The average push-out force shall exceed 30 pounds in all five
test locations (and each individual force shall exceed 20 pounds). This
requirement is intended to prevent a child from being able to dislodge
the gate and gain access to a hazardous area the gate was meant to keep
them from accessing.
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 pounds to activate
and open the gate; or (2) the lock must have a double-action release
mechanism. This requirement is intended to prevent a child 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.'' This requirement
is intended to ensure that any toys that come with an enclosure meet
the same safety requirements as toys sold separately from an enclosure.
Slat Strength: This test verifies that no wood or metal
vertical members (slats) completely break, or that 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 labels attached by a seam shall not
liberate when subjected to a 15-pound pull force. This requirement is
intended to ensure that product labels are permanently affixed.
Warning, Labeling and Instructions. These provisions specify the
marking, labeling, and instructional literature requirements that must
appear on, or with, each gate or enclosure. Warnings are also required
on the retail packaging, unless they are visible in their entirety on
the gate or enclosure at point of purchase for consumers to see.
All gates and enclosures must include warnings on the
product about the risk of serious injury or death when a product is not
installed securely, 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
without the use of wall cups 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.''
C. International Standards for Gates and Enclosures
The NPR discussed CPSC staff's review of two international
standards that address gates and enclosures (1) the European Standard,
EN 1930:2011/A1 Child use and care articles--Safety barriers--Safety
requirements and test methods; and (2) Canadian regulation, SOR/2016-
179 Expansion Gates and Expandable Enclosures Regulations (the Canadian
regulation refers to an outdated 1986 version of ASTM F1004 which has
been superseded by recent versions). 84 FR at 32352. In comparing these
two international standards to ASTM F1004-19, staff determined that
ASTM F1004-19 is adequate, or more stringent than, the international
standards in addressing the hazard patterns identified in the incident
data associated with gates and enclosures. Id.
VI. Adequacy of ASTM F1004-19 Requirements To Address Identified
Hazards
For the NPR, the Commission stated that the current voluntary
standard, ASTM F1004-19, adequately 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. 84 FR at 32350. Additionally,
in the NPR, the Commission stated that the performance requirements and
test methods in ASTM F1004-19 adequately address most of the primary
hazard patterns identified in the incident data, except for consumer
awareness of whether a pressure-mounted gate is installed correctly.
Id. at 32350-52. Based on staff's assessment of all 478 reported
incidents (22 fatal and 456 nonfatal; 428 associated with the use of a
gate and 50 associated with the use of an enclosure) to identify hazard
patterns associated with children's gates and enclosures, as well as
staff's evaluation of ASTM F1004-19, for this final rule, the
Commission concludes that ASTM F1004-19 adequately addresses the
identified hazards associated with the use of gates and enclosures
except for one--installation issues associated with pressure-mounted
gates.\9\
---------------------------------------------------------------------------
\9\ See Staff Final Rule Briefing Package at Tabs B and C.
---------------------------------------------------------------------------
Installation problems are associated with 21 incidents (4%),
including five drowning fatalities. The CPSC incident data show that
incidents occurred when: A product included unclear instructions;
mismatched dimensions between a gate and the opening it was
[[Page 40106]]
meant to fit into; and failure of the gate to remain upright in an
opening, described as ``pushed out,'' ``pulled down,'' or ``knocked
down.'' The most recent revision, ASTM F1004-19, represents a large
step forward in addressing installation issues, especially related to
pressure-mounted gate push-out hazards. The revision requires all gates
to meet the same push-out force (e.g., 30 pounds) with provisions that
allow the use of wall cups to meet this requirement. CPSC staff's
testing found that most pressure-mounted gates tested can meet the 30-
pound push-out force requirements of ASTM F1004-19 with the use of wall
cups. Correct installation of pressure-mounted gates depends on
consumer awareness and behavior to install the gate correctly. Based on
the incident reports and staff's testing, the Commission concludes that
additional requirements are necessary to further strengthen the
standard to reduce the risk of injury associated with the use of
pressure-mounted gates, by increasing the likelihood that caregivers
install such gates securely to confine their child.
The Commission will finalize the rule with two alternative
requirements, depending on whether wall cups are necessary to meet the
30-pound push-out force test, to address the hazards associated with
incorrect installation of pressure-mounted gates. The two alternative
requirements specify that: (1) For gates that use wall cups, a separate
warning label in a conspicuous location on the top rail of the gate
regarding correct installation using wall cups; or (2) for gates that
do not use wall cups, visual side-pressure indicators to provide
consumers feedback about whether the gate is installed correctly.
A. Separate Warning Label
ASTM F1004-19 currently requires a warning statement about the
hazard of installing gates without wall cups: ``You MUST install wall
cups to keep the gate in place. Without wall cups, child can push out
and escape.'' This warning statement is included within the general
warning label, which can have as many as six different required
messages in one location. However, the use of wall cups to meet the 30-
pound push-out force test, and thus, to improve safety, relies on
consumers actually installing the wall cups. To improve the likelihood
that consumers will follow directions and heed the associated warning
label, the location of the label is important. Installation-related
incidents with pressure-mounted gates include deaths and serious
injuries, and wall cups are critical features that are necessary for
correct installation of some pressure-mounted gates. Accordingly,
throughout the consultation process, CPSC staff consistently
recommended that ASTM consider locating the pressure-gate/push-out
warning as a separate and distinct warning positioned in a highly
conspicuous location, such as along the top rail of the gate. A top-
rail location would be within the caregiver's line of sight and
oriented in a readable direction during normal use of the gate.
In the NPR, staff indicated that further collaboration with
stakeholders at ASTM could result in moving the wall cup warning
language from its current location. Currently, the wall cup warning
language is mixed in with the other warning statements. Staff suggested
moving the warning language to a place where the warning is highly
conspicuous, separate, and distinct, such as a place along the top rail
of the gate that is visible to a caregiver operating the gate. However,
no task group or subcommittee meetings occurred between June 2019 and
December 2019, nor did ASTM issue a ballot regarding the wall cap
warning language. In December 2019, CPSC staff sent a letter \10\ to
the ASTM subcommittee chair, requesting a subcommittee meeting to
discuss specific ballot language about the warning label
recommendation. The subcommittee met on January 21, 2020, and agreed to
send the proposal to ballot. ASTM issued the ballot on March 5, 2020
(ASTM Ballot F15 (20-02), Item 4), and the ballot closed on April 6,
2020. The ballot received two substantive negative votes. Both negative
votes noted that the balloted language stated that all ``products''
must contain the wall cup warning, rather than state that just
pressure-mounted gates must contain the warning. On May 6, 2020, ASTM
released a ballot containing a revision to the warning label location,
containing a clarification to address these negatives by replacing the
word ``products'' with ``pressure-mounted gates.'' This ballot closes
on June 5, 2020.
---------------------------------------------------------------------------
\10\ https://www.regulations.gov/contentStreamer?documentId=CPSC-2019-0014-0006&contentType=pdf.
---------------------------------------------------------------------------
To further reduce the risk of injury associated with incorrectly
installed pressure-mounted gates, the final rule requires that
pressure-mounted gates that rely on wall cups to meet the 30-pound
push-out force requirement, must also place a warning regarding
installation of wall cups along the top rail of the gate, separate and
distinct from other warnings. The wording of this requirement in the
final rule harmonizes with the ASTM ballot F15 (20-04), Item 6.
B. Visual Side-Pressure Indicators
Before the NPR, CPSC staff presented a series of recommendations to
the F15.16 subcommittee to improve the installation of pressure-mounted
gates, including improvements to the push-out test, and potentially
using visual indicators to inform caregivers when a pressure-mounted
gate is installed securely. Leading up to the NPR, the subcommittee
made the recommended improvements in the standard to the push-out test,
in addition to requiring that all gates (including pressure-mounted
gates) meet 30 pounds of push-out resistance. Although some pressure-
mounted gates are capable of meeting 30 pounds of push-out resistance
without wall cups when they are installed correctly, most pressure-
mounted gates likely will use wall cups. CPSC staff testing found that
ASTM F1004-19 requires gates that use wall cups to come with the wall
cups and other mounting hardware. As stated above in IV.A, the final
rule will also require these gates to place a warning label along the
top rail regarding the importance of installing wall cups.
However, for pressure-mounted gates that do not rely on wall cups
to meet the 30-pound push-out force test, ASTM F1004-19 contains no
requirement to provide feedback to the end consumer to indicate whether
the gate is installed correctly. Instructions for pressure-mounted
gates without wall cups provide little or no clear direction to help
consumers know when the gate is installed correctly, or that it stays
in place after several uses. For example, gates currently on the market
may instruct the consumer to adjust until secure, or to push the gate
to feel if it is secure. CPSC staff observed that even when following
the manufacturer's instructions, the push-out force for some gates that
use tension bolts varies each time the gate is re-installed and tested.
Staff also observed that with one metal gate tested, where tension
bolts and nuts are used to secure it in place, only a half rotation of
the tension nuts would change the distance between the gate and the
test fixture by 0.032 inches and result in a gate meeting or not
meeting the 30 pound push-out force requirement. These adjustments are
barely noticeable to the average consumer, who relies only on feel, and
not precise measurements or any other feedback.
Staff testing and analysis, discussed in detail in Staff's NPR
Briefing Package, Tab C, and Staff's Final Rule Briefing Package, Tab
B, suggest that visual
[[Page 40107]]
indicators can improve the safety of pressure-mounted gates that do not
use wall cups. At the time of the NPR, staff recommended continuing to
work with the ASTM subcommittee to resolve the issue of visual side-
pressure indicators. However, no task group or subcommittee meetings
occurred from June 2019 to December 2019; nor did ASTM issue a ballot
on this matter. The NPR invited comments on this specific issue, but
the Commission received no comments.
In a letter dated December 11, 2019,\11\ CPSC staff urged
discussion at an ASTM subcommittee meeting regarding ballot language to
include a visual side-pressure indicator provision for pressure-mounted
gates that do not use wall cups to meet the 30 pound push-out force
test in the ASTM standard. On January 21, 2020, the ASTM subcommittee
discussed draft language for a visual side-pressure indicator
provision. ASTM subcommittee members raised concerns regarding
potential issues, such as proposed language using the term ``minimum
pressure.'' Some subcommittee members stated that this language implied
that a test lab would need to measure the pressure at each corner of
the gate. CPSC staff clarified that staff's intention was that the
current push-out force performance test would identify gates that
indicate incorrectly that the required side pressure is maintained.
However, after this discussion, the ASTM subcommittee chair reactivated
the visual side-pressure indicator task group to potentially revise the
draft proposed language to address subcommittee member concerns.
---------------------------------------------------------------------------
\11\ https://www.regulations.gov/contentStreamer?documentId=CPSC-2019-0014-0006&contentType=pdf.
---------------------------------------------------------------------------
On March 10, 2020, the task group met to discuss the draft ballot
proposal. Task group discussion centered on the testability of the
visual side-pressure indicator performance requirement for pressure-
mounted gates. The task group meeting concluded with the task group
chair agreeing to revise the proposed ballot language to address member
concerns and to resend the proposed ballot language to the task group
for review. On April 2, 2020, CPSC staff received a draft proposal from
the task group chair. On April 22, 2020, the task group chair
recirculated the same draft. On April 23, 2020, the task group chair
indicated his intention to ballot the proposal, unless there were
significant comments from the task group necessitating another meeting.
CPSC staff is unaware of any further comment.
After reviewing the revised ballot language for visual side-
pressure indicators, CPSC staff concluded that the proposed language
adequately addresses staff's concerns and provides a visual indicator
of whether a pressure-mounted gate that does not use wall cups to meet
the 30-pound push-out force test is installed securely. The Commission
agrees, and anticipates that ASTM will ballot this requirement within
the next few months to incorporate into ASTM F1004. Accordingly, to
further reduce the risk of injury associated with incorrect
installation of pressure-mounted gates, the draft final rule requires
that pressure-mounted gates that do not use wall cups, to meet the 30-
pound push-out force test, must include visual side-pressure indicators
to inform caregivers that the gate is installed securely. The language
for this requirement in the final rule harmonizes with the ASTM task
group draft language circulated April 22, 2020.
VII. Response to Comments
CPSC received three comments on the NPR.\12\ A trade association
forwarded two comments, one comment did not address the NPR. The two
comments generally supported the NPR and the ASTM process. However, the
commenter disagreed with the proposed 6-month effective date,
anticipating the effect that the standard may have on small businesses.
This commenter recommended a 12-month effective date. The Commission
agrees, and the final rule contains a 12-month effective date, as
discussed below in section X of this preamble.
---------------------------------------------------------------------------
\12\ Available at https://www.regulations.gov/docket?D=CPSC-2019-0014.
---------------------------------------------------------------------------
VIII. Description of the Mandatory Standard for Gates and Enclosures
The Commission concludes that ASTM F1004-19 adequately addresses
the hazards associated with gates and enclosures, except for consumer
awareness about whether pressure-mounted gates are installed correctly.
Thus, for the final rule on safety standards for gates and enclosures,
the Commission incorporates by reference ASTM F1004-19, with the
addition of the following two alternative requirements to provide
consumers with additional information about correct installation of
pressure-mounted gates, to further reduce the risk of injury associated
with the use of pressure-mounted gates:
(1) For pressure-mounted gates that include wall cups with the
product to meet the 30-pound push-out force test, the gates must
include a separate warning label in a conspicuous location on the top
rail of the gate regarding correct installation using wall cups; or
(2) For pressure-mounted gates that do not use wall cups to meet
the 30-pound push-out force test, the gates must use visual side-
pressure indicators to provide consumers with feedback on whether the
gate is installed correctly.
IX. Incorporation by Reference
Section 1239.2(a) of the final rule provides that each gate and
enclosure must comply with applicable sections of ASTM F1004-19. The
Office of the Federal Register (OFR) has regulations concerning
incorporation by reference. 1 CFR part 51. For a final rule, agencies
must discuss in the preamble to the rule the way in which materials
that the agency incorporates by reference are reasonably available to
interested persons, and how interested parties can obtain the
materials. Additionally, the preamble to the rule must summarize the
material. 1 CFR 51.5(b).
In accordance with the OFR's requirements, section V.B of this
preamble summarizes the provisions of ASTM F1004-19 that the Commission
is incorporating by reference. ASTM F1004-19 is copyrighted. Before the
effective date of this rule, you may view a copy of ASTM F1004-19 at:
https://www.astm.org/cpsc.htm. Once the rule becomes effective, ASTM
F1004-19 can be viewed free of charge as a read-only document at:
https://www.astm.org/READINGLIBRARY/. To download or print the
standard, interested persons may 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. Alternatively, interested parties may inspect a copy of the
standard by contacting Alberta E. Mills, Division of the Secretariat,
U.S. Consumer Product Safety Commission, 4330 East West Highway,
Bethesda, MD 20814; telephone: 301-504-7479; email: [email protected].
X. 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). CPSC generally considers 6 months to be
sufficient time for suppliers of durable infant and toddler products to
come into compliance with a new standard under section 104 of the
CPSIA. Six months is also the period that the Juvenile Products
Manufacturers Association (JPMA) typically allows for products in
[[Page 40108]]
the JPMA certification program to transition to a new standard once
that standard is published. Accordingly, the NPR proposed a 6-month
effective date for gates and enclosures.
We received one comment from a trade association asking for a 12-
month effective date, stating that many of its members would require
``significant design changes'' and need time to make these changes. The
30-pound push-out force test was added to the ASTM standard in June
2019, and CPSC's NPR published in July 2019. Therefore, manufacturers
of gates and enclosures have already had almost 12 months to address
the push-out force requirements in ASTM F1004-19. However, the final
rule also includes two alternative requirements to provide consumers
with information or feedback on the correct installation of pressure-
mounted gates. Additionally, staff advises that most of the companies
selling gates and enclosures are small businesses that may need more
time to redesign and test their gates to address the push-out force
requirement, or work with their suppliers to purchase compliant
products. For these reasons, the Commission will set a 12-month
effective date for the final rule.
XI. Assessment of Small Business Impact
A. Introduction
The Regulatory Flexibility Act (RFA), 5 U.S.C. 601-612, requires
that agencies review a proposed rule and a final rule for the rule's
potential economic impact on small entities, including small
businesses. Section 604 of the RFA generally requires that agencies
prepare a final regulatory flexibility analysis (FRFA) when
promulgating final rules, unless the head of the agency certifies that
the rule will not have a significant economic impact on a substantial
number of small entities. Staff prepared a FRFA that is available at
Tab D of Staff's Final Rule Briefing Package.
Based on staff's analysis, the Commission concludes that there
would not be a significant economic impact on the 23 small suppliers of
compliant gates and enclosures. The Commission also expects that the
impact on noncompliant suppliers will not be significant for the nine
firms that have a diversified product line, or whose gates and
enclosures already meet most of the requirements of the standard.
However, the Commission concludes that there could be a significant
economic impact on five suppliers of noncompliant gates and enclosures.
Additionally, staff concludes that it is likely that all 80 of the very
small, home-based suppliers will be significantly impacted, and
compliance with the mandatory standard will require them to stop
selling gates altogether. We provide a summary of the FRFA below.
B. The Market for Gates and Enclosures
Section II.B of this preamble describes the market, including a
summary of retail prices, for gates and enclosures. The Durable Nursery
Products Exposure Survey (DNPES) found that a slight majority (52%) of
U.S. households with children under age 6 have a gate or enclosure in
their home, with many households owning more than one gate, and about
11.1 million baby gates and enclosures in use in 2013.\13\
---------------------------------------------------------------------------
\13\ Karen Melia and Jill Jenkins ``Durable Nursery Products
Exposure Survey (DNPES)--Final Summary Report'', prepared for the
CPSC by Westat, November 2014.
---------------------------------------------------------------------------
C. Suppliers of Gates and Enclosures and the Impact on Small Businesses
Staff identified 127 firms supplying gates and enclosures to the
U.S. market. The majority of suppliers to the U.S. market are domestic,
including domestic importers of gates manufactured elsewhere. About 80
very small, home-based domestic manufacturers sell gates.\14\ Staff
identified another 47 firms that supply gates and/or enclosures that
are not home-based and are generally larger than the home-based
suppliers, nearly all of which are domestic. These firms include both
manufacturers and importers. Because of firm size and/or location of
manufacture, 10 companies are out of scope for this analysis on the
impact on small domestic businesses. The 37 remaining firms are small
domestic entities, based on U.S. Small Business Administration (SBA)
guidelines for the number of employees in their North American Industry
Classification System (NAICS) codes. These firms typically have at
least eight to nine gate models in their product lines, and have much
larger sales volumes than the home-based suppliers. Most of the small
companies making or importing gates and enclosures do not have gates as
their main product line; rather, they sell other nursery items and
unrelated consumer products, including toys, furniture, clothing,
plastic molded items, infant sleep products, strollers, baby monitors,
floor mats, bird feeders, and car seats.
---------------------------------------------------------------------------
\14\ 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 on-line presence). These suppliers enter and exit on the market
relatively frequently; the number found through staff research is an
estimation of the actual number at any given time.
---------------------------------------------------------------------------
1. Very Small, Home-Based Manufacturers
Approximately 80 very small, home-based manufacturers supply gates
to the U.S. market. Most, if not all, of these gates would probably
require substantial modifications to comply with the final rule; and
staff expects that these firms will stop selling gates. These firms
typically sell fewer than 100 items per year, including products other
than gates. About 10 home-based manufacturers sell more than 500 items
per year, including, but not limited to, gates. About six manufacturers
sell fabric gates; the rest sell wooden or wooden and metal gates.
Because of the cost of redesigning gates, and/or testing for compliance
with the final rule, staff assumes that most of these sellers will stop
selling gates when the rule becomes effective.
Staff states that small, home-based manufacturers could re-label
their gates as pet gates, thus, reducing the economic impact of this
rule. Online reviews of pet gates and child gates show that some
parents are already purchasing pet gates for child use, while pet
owners are buying child gates for pet use. However, because customers
seeking to purchase baby gates will not necessarily consider buying a
pet gate instead of a child gate, staff concludes that the impact would
likely still be economically significant.
2. Small Manufacturers
a. Small Manufacturers With Compliant Gates and Enclosures
Currently, 14 of the small domestic manufacturers produce gates or
enclosures that comply with the previous version of the standard, ASTM
F1004-18.\15\ Staff assumes that compliant firms will remain compliant
with the voluntary standard as it evolves, because compliance is part
of an established business practice. Because these firms are already
testing to the previous version of the ASTM standard, staff expects
that any additional third party testing costs would be minimal.
Similarly, all of these firms already have warning stickers and
instruction manuals that are compliant with the previous standard.
Accordingly, staff expects the costs of any modifications to comply
[[Page 40109]]
with the new standard to be insignificant.
---------------------------------------------------------------------------
\15\ A 6-month delay typically occurs between the publication of
a new ASTM voluntary standard and its adoption for compliance
testing. ASTM F1004-19 was published in June 2019, and therefore, it
became effective for testing purposes in January 2020.
---------------------------------------------------------------------------
Moreover, the final rule's change in warning label location, for
gates that use wall cups to meet the 30-pound push-out force test, and
the requirement for visual side-pressure indicators for gates that do
not use wall cups to comply with the 30-pound push-out force test, only
apply to pressure-mounted gates. Some manufacturers only supply
hardware-mounted gates, or have hardware gates as most of their product
line. Other manufacturers sell pressure-mounted gates with wall cups
supplied, so these manufacturers would only need to change the label.
Some manufacturers already sell gates with visual side-pressure
indicators.
b. Small Manufacturers With Noncompliant Gates and Enclosures
Four small domestic manufacturers produce gates and enclosures that
do not comply with the ASTM standard. Staff does not expect the costs
of any product changes to comply with requirements for instruction
manuals and labeling to be significant for any of these firms, because
they already have instruction manuals and warning labels. All four of
these manufacturers appear to be familiar with at least some aspects of
safety requirements for durable nursery goods, including testing for
compliance. Two manufacturers were compliant with earlier versions of
the ASTM standard for gates and enclosures; one manufacturer claims
compliance to CPSIA section 101 and 108; and one firm manufactures
other products that comply with relevant ASTM standards for durable
nursery products.
For the two manufacturers of noncompliant enclosures, staff does
not expect that third party testing costs will exceed 1 percent of
revenue, because these two manufacturers have millions of dollars in
revenue; they already certify compliance with other ASTM standards; and
they have few gate or enclosure models in their product lines. For the
other two small domestic manufacturers of noncompliant gates and
enclosures, the impact may be significant. One of the small
manufacturers makes only pressure-mounted gates, although the option
for wall cups could make it relatively inexpensive for that firm to
achieve compliance without significant redesign. The other manufacturer
sells noncompliant gates and enclosures as most of their product line,
sells both hardware-mounted and pressure-mounted gates, and some of the
gates and enclosures appear to require redesign to meet the standard.
If this manufacturer redesigns their product, the cost could be
significant.\16\
---------------------------------------------------------------------------
\16\ Firms interviewed during the development of the draft
proposed rule indicated that the cost of a redesign could be between
$400,000 and $1 million (one firm indicated that the cost could be
higher in some cases), depending on the material with which the
product is constructed, and the extent of the required structural
changes.
---------------------------------------------------------------------------
3. Small Importers
a. Small Importers With Compliant Gates and Enclosures
Staff identified nine gate/enclosure importers currently in
compliance with ASTM F1004-18. Staff expects these firms, like small
manufacturers of compliant gates and enclosures, to be in compliance
with ASTM F1004-19 before the draft final rule becomes effective.
Therefore, staff does not expect the economic impact to be significant
for any of the importers with compliant gates or enclosures. Any third
party testing costs for importers of compliant gates and enclosures
would be limited to the incremental costs associated with third party
testing over their current testing regime.
b. Small Importers With Noncompliant Gates and Enclosures
Staff identified 10 small importers of noncompliant gates and
enclosures. Seven of these firms sell many other products. Thus,
dropping gates and enclosures from their product line or finding a new
supplier could have a relatively minor impact on their total revenue.
Most of the noncompliant gates and enclosures already have some warning
labels and instruction manuals; and some claim to be tested for lead,
phthalates, and BPA. Therefore, staff concludes that the costs of third
party testing to demonstrate compliance could be minimal as a
percentage of sales. Staff also finds that it may be possible for these
importers to find new suppliers of compliant gates and enclosures.
Several importers of noncompliant gates sell gates with multiple
extensions. The ASTM standard requires that gates with extension panels
must be compliant in any of the manufacturer's recommended use
positions. Staff acknowledges that this could increase testing costs.
Accordingly, staff believes it likely that these firms will stop
selling gates with more than two extensions. Gates for these importers
appear to be very similar to other compliant hardware-mounted gates;
therefore, these importers may be able to achieve compliance cost-
effectively by importing gates with fewer extensions.
For three of the noncompliant importers, staff believes that a
significant economic impact could occur. One small importer of
noncompliant enclosures appears to sell enclosures only. Finding an
alternative supplier might pose significant costs for this firm.
Perhaps this firm could find another compliant supplier relatively
easily, given that many different brands of imported enclosures appear
very similar; some, in fact, comply with a previous version of the ASTM
standard.
The other two small importers of noncompliant gates that could be
impacted significantly have gates as a large part of their product
line. One of the two small importers sells hardware-mounted gates only;
while the other importer already includes wall cups with their
pressure-mounted gates. Therefore, staff believes their products could
be compliant without significant redesign. However, third party testing
to demonstrate compliance may well represent more than 1 percent of
revenue for these importers. This could represent a significant impact,
unless their supplier absorbs the costs.
D. Other Potential Impacts
The final rule requires suppliers of gates and enclosures to comply
with the requirements of the safety standard for gates and enclosures,
or stop selling noncompliant gates and enclosures. Accordingly,
compliance with the final rule could impact the price and selection of
gates and enclosures available to consumers. Compliance with the
mandatory standard could also impact suppliers of wall cups, by
increasing demand for their products.
Compliance with the standard could raise the retail price of
pressure-mounted gates by $5 to $10. We do not believe, however, that
this will significantly decrease sales of gates. The price of hardware-
mounted gates is unlikely to increase; most of the bestselling gates
already cost more than $25. Additionally, many suppliers contract with
foreign manufacturers, and some of the companies sell in multiple
markets, including Europe, Asia, and Canada. Having a U.S. standard
that is more stringent than, or different from, standards in those
regions could force companies to develop different gates for different
markets, or cause them to develop a more costly gate that meets all the
standards.
Some manufacturers may market their noncompliant gates as pet
gates. We can see from online reviews of pet gates and child gates that
some parents already purchase pet gates for use with children, and
likewise, pet owners buy child gates
[[Page 40110]]
for pet use. Some of the pet gates already comply with ASTM and JPMA.
The least expensive pet gates retail for approximately $20, more than
the current price of the least expensive child gates. Therefore, this
remarketing likely will not have a measurable impact on the market for
either type of gate. However, the least-expensive dog pens are about
half the price of the least-expensive enclosures for children.
Accordingly, some manufacturers might remarket their noncompliant
enclosures as dog pens.
E. Steps To Minimize Economic Impacts on Small Entities
Based on staff's recommendation and a comment on the NPR, the final
rule has a 12-month effective date. A later effective date could reduce
the economic impact on firms in two ways. Firms would be less likely to
experience a lapse in production/importation, which could result if
they are unable to comply and obtain third-party testing within the
required timeframe, or find a new supplier. Firms could also spread
costs over a longer time period. Suppliers interviewed for the NPR
indicated that 12 to 18 months might be necessary, if a complete
product redesign were required. Unless suppliers choose to add visual
side-pressure indicators to a gate that does not currently have them,
or the gate/enclosure of any type does not meet multiple requirements
in the ASTM standard, a complete redesign should not be necessary.
Additionally, the final rule provides suppliers of pressure-mounted
gates with two alternatives to meet the requirement in the final rule
to improve consumer feedback regarding installation of pressure-mounted
gates. Firms can either: (1) Include wall cups with the gate and place
a separate warning label regarding the importance of installation of
the wall cups on the top rail of the gate, or (2) use visual side-
pressure indicators to demonstrate that the gate is installed
correctly. The wall cups option will not require a redesign for gates
that can meet the 30-pound push-out test with wall cups; this option
only requires a new label on the top rail of the gate. Suppliers that
already include effective visual side-pressure indicators on their
gates will likely also be able to meet the standard without a redesign.
If CPSC did not provide two options to meet the new requirement, nearly
all pressure gate manufacturers would have been required to redesign
their gates or would have had to include wall cups in the packaging.
Providing two alternative requirements for pressure gate suppliers to
meet the standard reduces the impact on small entities.
XII. Environmental Considerations
The Commission's regulations address whether the agency is required
to prepare an environmental assessment or an environmental impact
statement. Under these regulations, certain categories of CPSC actions
normally have ``little or no potential for affecting the human
environment,'' and therefore, they do not require an environmental
assessment or an environmental impact statement. Safety standards
providing requirements for products come under this categorical
exclusion. 16 CFR 1021.5(c)(1). The final rule for gates and enclosures
falls within the categorical exemption.
XIII. Paperwork Reduction Act
The final 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.
The preamble to the proposed rule (84 FR 32354-55) discussed the
information collection burden of the proposed rule and specifically
requested comments on the accuracy of our estimates. OMB assigned
control number 3041-0182 for this information collection. We did not
receive any comment regarding the information collection burden of the
proposal. For the final rule, CPSC adjusts the number of small home-
based manufacturers from 83 to 80, and the number of other suppliers
from 30 to 47. In accordance with PRA requirements, the CPSC provides
the following information:
Title: Safety Standard for Gates and Enclosures.
Description: The final rule requires each gate and enclosure to
comply with ASTM F1004-19, Standard Consumer Safety Specification for
Expansion Gates and Expandable Enclosures, with an option to address
installation issues associated with pressure-mounted gates. 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
--------------------------------------------------------------------------------------------------------------------------------------------------------
Number of Frequency of Total annual Hours per Total burden
Burden type Type of supplier respondents responses responses response hours
--------------------------------------------------------------------------------------------------------------------------------------------------------
Labeling.................................. Home-based manufacturers.... 80 2 160 7 1,120
Other Suppliers............. 47 8 376 1 376
--------------------------------------------------------------------------------------------------------------------------------------------------------
Labeling Total........................ ............................ .............. .............. .............. .............. 1,496
--------------------------------------------------------------------------------------------------------------------------------------------------------
Instructional literature.................. Home-based manufacturers.... 80 2 50 100 8,000
--------------------------------------------------------------------------------------------------------------------------------------------------------
Total Burden...................... ............................ .............. .............. .............. .............. 9,496
--------------------------------------------------------------------------------------------------------------------------------------------------------
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-
[[Page 40111]]
based manufacturers (80), 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 gate
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 80 entities x 2 models per entity
= 1,120 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 (47).
These are also mostly small domestic firms, but they are not home-based
firms, and they do not operate at the low production volume of the
home-based firms. For this second group, all with existing warning
labels on their products, and who 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 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 hour per
model x 47 entities x 8 models per entity = 376 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 (1,120 burden hours) + non-home-based manufacturers and
importers (376 burden hours) = 1,496 burden hours. We estimate the
hourly compensation for the time required to create and update labels
is $34.26 (U.S. Bureau of Labor Statistics, ``Employer Costs for
Employee Compensation,'' March 2020, Supplementary Table 9, total
employer costs for employees in private industry: https://www.bls.gov/ncs/). Therefore, the estimated annual cost to industry associated with
the labeling requirements is $51,253 ($34.26 per hour x 1,496 hours =
$51,252.96). 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 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, over time, to vary substantially,
based on CPSC staff's review of the marketplace, currently, there are
approximately 80 home-based suppliers of gates and/or enclosures
operating in the U.S. market. These firms, on average, typically supply
two gates. Therefore, the costs for these firms of designing an
instruction manual for their products could be as high as $274,080 (50
hours per model x 80 entities x 2 models per entity = 8,000 hours x
$34.26 per hour = $274,080). 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 are already likely
providing user instruction manuals 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 9,496
hours at a cost of $325,333 annually. In compliance with the Paperwork
Reduction Act of 1995 (44 U.S.C. 3507(d)), we have submitted the
information collection requirements of this final rule to OMB.
XIV. Preemption
Section 26(a) of the CPSA, 15 U.S.C. 2075(a), provides that when 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 Commission 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 standards.'' Therefore, the preemption provision of
section 26(a) of the CPSA applies to this final rule issued under
section 104.
XV. Amendment to 16 CFR Part 1112 To Include NOR for Gates and
Enclosures
The CPSA establishes certain requirements for product certification
and testing. 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 Commission, must be certified as complying
with all applicable CPSC-enforced requirements. 15 U.S.C. 2063(a).
Certification of children's products subject to a children's product
safety rule must be based on testing conducted by a CPSC-accepted third
party conformity assessment body. 15 U.S.C. 2063(a)(2). The Commission
must publish an NOR for the accreditation of third party conformity
assessment bodies to assess conformity with a children's product safety
rule to which a children's product is subject. 15 U.S.C. 2063(a)(3).
The final rule for gates and enclosures, to be codified at 16 CFR part
1239, is a children's product safety rule that requires the issuance of
an NOR.
The Commission 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).
Part 1112 became effective on June 10, 2013, and 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.
Part 1112 also codifies a list of all of the NORs that the CPSC issued
when CPSC published part 1112. All NORs issued after the Commission
published part 1112 require the Commission to amend part 1112.
Accordingly, the Commission amends part 1112 to include the safety
standard for gates and enclosures in the list of other children's
product safety rules for which the CPSC has issued NORs.
Laboratories applying for acceptance as a CPSC-accepted third-party
conformity assessment body to test to the new standard are 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, the laboratory
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
[[Page 40112]]
rules listed for the laboratory on the CPSC's website at: www.cpsc.gov/labsearch.
The Commission certified in the NPR that the proposed NOR for gates
and enclosures would not have a significant impact on a substantial
number of small laboratories. 84 FR 32356. No substantive factual
changes have occurred since the NPR was published, and CPSC did not
receive any comments regarding the NOR. Therefore, for the final rule,
the Commission continues to certify that amending part 1112 to include
the NOR for the gates and enclosures final rule will not have a
significant impact on a substantial number of small laboratories.
XVI. Congressional Review Act
The Congressional Review Act (CRA; 5 U.S.C. 801-808) states that,
before a rule may take effect, the agency issuing the rule must submit
the rule, and certain related information, to each House of Congress
and the Comptroller General. 5 U.S.C. 801(a)(1). The submission must
indicate whether the rule is a ``major rule.'' The CRA states that the
Office of Information and Regulatory Affairs (OIRA) determines whether
a rule qualifies as a ``major rule.'' Pursuant to the CRA, this rule
does not qualify as a ``major rule,'' as defined in 5 U.S.C. 804(2). To
comply with the CRA, the Office of the General Counsel will submit the
required information to each House of Congress and the Comptroller
General.
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 amends
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.
(a) Except as provided in paragraph (b) of this section, 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 (ASTM F1004-19). 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; https://www.astm.org. You may also
inspect a copy: Electronically at https://www.astm.org/READINGLIBRARY/;
in person at the Division of the Secretariat, U.S. Consumer Product
Safety Commission, Room 820, 4330 East West Highway, Bethesda, MD
20814, telephone: 301-504-7479, email: [email protected]; or in person
at the National Archives and Records Administration (NARA). For
information on the availability of this material at NARA, email
[email protected], or go to: https://www.archives.gov/federal_register/code_of_federalregulations/ibr_locations.html.
(b) Comply with ASTM F1004-19 with the following additions or
exclusions:
(1) Instead of complying with section 3.1.3 of ASTM F1004-19,
comply with the following:
(i) 3.1.3 conspicuous, adj--visible when the gate/expandable
enclosure is in all manufacturer's recommended use positions, to a
person standing near the gate/expandable enclosure at any one position
around the gate/expandable enclosure, but not necessarily visible from
all positions.
(ii) [Reserved]
(2) Add the following to paragraphs to section 3.1 of ASTM F1004-
19:
(i) 3.1.16 visual side-pressure indicator, n--a warning system,
device, or provision using contrasting colors, lights, or other similar
means designed to visually alert the installer/user to the status of
the side pressure of a pressure mounted gate during installation and
use.
(ii) 3.1.17 side pressure, n--force required, at each contact
location of the gate and mounting surface, to meet the requirements of
6.3 as determined by the manufacturer.
(3) Add the following paragraphs to section 6 of ASTM F1004-19:
(i) 6.8 Visual Side-Pressure Indicators--Any pressure-mounted gate
that does not require the use of Pressure-Mounted Gate-Mounting
Hardware per 6.7, to meet the performance requirements in 6.3.1, shall
include Visual Side-Pressure Indicators.
(ii) 6.8.1 Visual Side-Pressure Indicators shall be conspicuous and
readily identifiable to a person installing and standing near the gate.
(iii) 6.8.2 Visual Side-Pressure Indicators shall monitor pressure
for each point of contact with the mounting surface utilizing one or
more of the following three options. Such indicators, when the gate is
tested in accordance with 7.9, shall indicate when the required side
pressure has been attained upon installation of the gate, and continue
to display the side pressure status while the gate is in a
manufacturer's recommend use position.
(iv) 6.8.2.1 A single visual side-pressure indicator for each
individual contact point.
(v) 6.8.2.2 A single visual side-pressure indicator for each
individual rail (top and bottom), so the opposing horizontal contact
points are addressed.
(vi) 6.8.2.3 A single visual side-pressure indicator for the entire
gate.
(4) Instead of complying with section 7.9.1.2 of ASTM F1004-19,
comply with the following:
(i) 7.9.1.2 Follow the manufacturer's installation instructions
when installing the gate in the center of the test opening. For
pressure-mounted gates with visual side-pressure indicators, ensure the
visual side-pressure indicators are displaying the proper status per
manufacturer's instructions.
(ii) [Reserved]
[[Page 40113]]
(5) Instead of complying with NOTE 11 of ASTM F1004-19, comply with
the following:
(i) Note 11--Address means that verbiage other than what is shown
can be used as long as the meaning is the same or information that is
product specific is presented. Brackets indicate that optional wording
may be used at the manufacturer's discretion if another identifier is
more appropriate.
(ii) [Reserved]
(6) Do not comply with section 8.5.3 of ASTM F1004-19.
(7) Add the following paragraphs to section 8.5 of ASTM F1004-19:
(i) 8.5.8 Pressure-mounted gates that provide wall cups or other
mounting hardware to meet the requirements of section 6.3 shall have
the following warning in the location specified: You MUST install [wall
cups] to keep gate in place. Without [wall cups], child can push out
and escape.
(ii) 8.5.8.1 This warning shall be separate from all other warnings
required on the product and shall not include any additional language.
(iii) 8.5.8.2 This warning shall be on the top rail.
(iv) 8.5.8.3 This warning shall be as close as possible to the side
of the product where the locking mechanism is located. If the locking
mechanism is in the center of the product, then this warning shall be
adjacent to the mechanism on either side of it.
(8) Add the following paragraph to section 9 of ASTM F1004-19:
(i) 9.5. For pressure-mounted gates with visual side-pressure
indicators, the instructions shall describe the function, use, and
importance of the visual side-pressure indicators and shall describe
how to make adjustments to meet the side-pressure requirements.
Instructions shall include a reminder to routinely check the status of
the side pressure indicators during ongoing use of gate.
(ii) [Reserved]
(9) Add the following paragraph to section X1.2.5 of ASTM F1004-19:
(i) X1.2.5.4 The visual side-pressure indicators requirement in 6.8
is to address incidents with pressure-mounted gates, where consumers
had difficulty properly installing the gate or uncertainty in the
security of the gate, which may lead to the gate being ``pushed out,''
``pulled down,'' or ``knocked over'' by children.
(ii) [Reserved]
Alberta E. Mills,
Secretary, Consumer Product Safety Commission.
[FR Doc. 2020-12561 Filed 7-2-20; 8:45 am]
BILLING CODE 6355-01-P