[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]


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CONSUMER PRODUCT SAFETY COMMISSION

16 CFR Parts 1112 and 1239

[Docket No. CPSC-2019-0014]


Safety Standard for Gates and Enclosures

AGENCY: Consumer Product Safety Commission.

ACTION: Final rule.

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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.
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    \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.
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    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
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    \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.
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    (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.
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    \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.
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    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.
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    \4\ The majority of non-expandable, fixed-size gates are sold by 
home-based manufacturers with very low sales volumes.
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    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.
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    \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.
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    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.
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    \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.
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    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\
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    \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.
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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.
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    \8\ A more detailed summary of the changes to ASTM F1004 can be 
found on page 8 of Staff's Final Rule Briefing Package.
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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\
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    \9\ See Staff Final Rule Briefing Package at Tabs B and C.
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    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.
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    \10\ https://www.regulations.gov/contentStreamer?documentId=CPSC-2019-0014-0006&contentType=pdf.
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    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.
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    \11\ https://www.regulations.gov/contentStreamer?documentId=CPSC-2019-0014-0006&contentType=pdf.
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    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.
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    \12\ Available at https://www.regulations.gov/docket?D=CPSC-2019-0014.
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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 (http://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\
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    \13\ Karen Melia and Jill Jenkins ``Durable Nursery Products 
Exposure Survey (DNPES)--Final Summary Report'', prepared for the 
CPSC by Westat, November 2014.
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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.
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    \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.
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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.
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    \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.
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    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: http://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: http://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