[Federal Register Volume 87, Number 218 (Monday, November 14, 2022)]
[Rules and Regulations]
[Pages 68032-68036]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-24561]


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CONSUMER PRODUCT SAFETY COMMISSION

16 CFR Part 1239

[Docket No. CPSC-2019-0014]


Safety Standard for Gates and Enclosures

AGENCY: Consumer Product Safety Commission.

ACTION: Direct final rule.

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SUMMARY: Consistent with the CPSIA's process for updating mandatory 
standards for durable infant or toddler products that are based on a 
voluntary standard, this direct final rule updates the mandatory 
standard for gates and enclosures to incorporate by reference to ASTM 
F1004-22.

DATES: The rule is effective on January 21, 2023, unless CPSC receives 
a significant adverse comment by December 14, 2022. If CPSC receives 
such a comment, it will publish a notification in the Federal Register, 
withdrawing this direct final rule before its effective date. The 
incorporation by reference of the publication listed in this rule is 
approved by the Director of the Federal Register as of January 21, 
2023.

ADDRESSES: You can submit comments, identified by Docket No. CPSC-2019-
0014, by any of the following methods:
    Electronic Submissions: Submit electronic comments to the Federal 
eRulemaking Portal at: www.regulations.gov. Follow the instructions for 
submitting comments.

[[Page 68033]]

CPSC typically does not accept comments submitted by electronic mail 
(email), except as described below. CPSC encourages you to submit 
electronic comments by using the Federal eRulemaking Portal.
    Mail/hand delivery/courier Written Submissions: Submit comments by 
mail, hand delivery, or courier to: Office of the Secretary, Consumer 
Product Safety Commission, 4330 East West Highway, Bethesda, MD 20814; 
telephone (301) 504-7479. If you wish to submit confidential business 
information, trade secret information, or other sensitive or protected 
information that you do not want to be available to the public, you may 
submit such comments by mail, hand delivery, or courier, or you may 
email them to: [email protected].
    Instructions: All submissions must include the agency name and 
docket number. CPSC may post all comments without change, including any 
personal identifiers, contact information, or other personal 
information provided, to: www.regulations.gov. Do not submit through 
this website: confidential business information, trade secret 
information, or other sensitive or protected information that you do 
not want to be available to the public. If you wish to submit such 
information, please submit it according to the instructions for mail/
hand delivery/courier/confidential written submissions.
    Docket: For access to the docket to read background documents or 
comments received, go to: www.regulations.gov, and insert the docket 
number, CPSC-2019-0014, into the ``Search'' box, and follow the 
prompts.

FOR FURTHER INFORMATION CONTACT: Carlos Torres, Project Manager, 
Division of Mechanical and Combustion Engineering, U.S. Consumer 
Product Safety Commission, 5 Research Place, Rockville, MD 20850; 
telephone: (301) 987-2504; email: [email protected].

SUPPLEMENTARY INFORMATION: 

A. Background

1. Statutory Authority

    Section 104(b)(1) of the CPSIA requires the Commission to assess 
the effectiveness of voluntary standards for durable infant or toddler 
products and to adopt mandatory standards for these products. 15 U.S.C. 
2056a(b)(1). A mandatory standard must be ``substantially the same as'' 
the corresponding voluntary standard, or it may be ``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. Id.
    Section 104(b)(4)(B) of the CPSIA specifies a process for updating 
the Commission's rules when a voluntary standards organization revises 
a standard that the Commission previously incorporated by reference 
under section 104(b)(1). First, the voluntary standards organization 
must notify the Commission of the revision. Once the Commission 
receives this notification, the Commission may reject or accept the 
revised standard. The Commission may reject the revised standard by 
notifying the voluntary standards organization, within 90 days of 
receiving notice of the revision, that it has determined that the 
revised standard does not improve the safety of the consumer product 
and that it is retaining the existing standard. If the Commission does 
not take this action to reject the revised standard, the revised 
voluntary standard will be considered a consumer product safety 
standard issued under section 9 of the Consumer Product Safety Act (15 
U.S.C. 2058), effective 180 days after the Commission received 
notification of the revision or on a later date specified by the 
Commission in the Federal Register. 15 U.S.C. 2056a(b)(4)(B).

2. Safety Standard for Gates and Enclosures

    Under section 104(b)(1) of the CPSIA, the Commission adopted a 
mandatory rule for gates and enclosures, codified in 16 CFR part 1239. 
The rule incorporated by reference ASTM F1004-19, Standard Consumer 
Safety Specification for Expansion Gates and Expandable Enclosures, 
with two modifications. 85 FR 40100 (July 6, 2020). The standard is 
intended to address head and neck entrapment in children's expansion 
gates and expandable enclosures, and the ability of pressure gates to 
resist a push-out force.
    In 2021, ASTM revised the voluntary standard to align with the two 
modifications contained in 16 CFR part 1239, by adding the following 
requirements for pressure-mounted gates:
     For pressure-mounted gates that rely on wall cups to meet 
the 30-lb push-out force test, the gates must include a separate 
warning label (regarding correct installation) in a conspicuous 
location on the top rail; or
     For pressure-mounted gates that do not use wall cups, the 
gates must use visual side-pressure indicators to provide feedback on 
whether the gate is installed correctly.
    Because the revised voluntary standard aligned with the mandatory 
standard, the Commission published a direct final rule on September 28, 
2021, to update 16 CFR part 1239 to reflect incorporation by reference 
of ASTM F1004-21, with no modifications (86 FR 53535).
    On June 1, 2022, ASTM approved and published a further revision, 
ASTM F1004-22. ASTM notified CPSC of the revision on July 25, 2022. On 
August 4, 2022, the Commission published a Notice of Availability in 
the Federal Register, requesting comment on whether the revision 
improves the safety of gates and expandable enclosures (87 FR 47729). 
Public comment closed on August 18, 2022, and CPSC did not receive any 
comments.
    As discussed in section B. Revisions to ASTM F1004, based on CPSC 
staff's review of ASTM F1004-22,\1\ the Commission will allow the 
revised voluntary standard to become the mandatory standard.\2\ 
Accordingly, by operation of law under section 104(b)(4)(B) of the 
CPSIA, ASTM F1004-22 will become the mandatory consumer product safety 
standard for gates and enclosures on January 21, 2023. 15 U.S.C. 
2056a(b)(4)(B). This direct final rule updates 16 CFR part 1239 to 
incorporate by reference the revised voluntary standard, ASTM F1004-22.
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    \1\ CPSC staff's briefing package regarding ASTM F1004-22 is 
available at: [INSERT LINK].
    \2\ The Commission voted TBD-TBD to approve this notice.
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B. Revisions to ASTM F1004

    The ASTM standard for gates and enclosures includes performance 
requirements, test methods, and requirements for marking, labeling, and 
instructional literature, to address hazards to children associated 
with expandable gates and enclosures. The CPSC's current mandatory 
standard Safety Standards for Gates and Enclosures in 16 CFR part 1239 
incorporates by reference ASTM F1004-21, with no modifications.
    The revision to ASTM F1004-22 consists of changes to the 
illustrated examples of warning labels referenced as Figures in Section 
8.4.7. The warning statement: ``You MUST install wall cups to keep the 
gate in place. Without wall cups, child can push out and escape'' was 
removed from Figures 8 through 10, and the same warning statement is 
shown as a standalone label in a new Figure 11. This change reflects 
the requirement in Section 8.5.7 for pressure-mounted gates to have a 
separate warning, specific to installation of wall cups, if the design 
of that gate

[[Page 68034]]

relies on the wall cups to meet the push-out force requirements.
[GRAPHIC] [TIFF OMITTED] TR14NO22.029

    Under section 104(b)(4)(B) of the CPSIA, unless the Commission 
notifies ASTM that it's revision to a voluntary standard that is 
referenced in a mandatory standard ``does not improve the safety of the 
consumer product covered by the standard,'' the revised voluntary 
standard becomes the new mandatory standard. The Commission determines 
that the substantive change in the latest revision to ASTM F1004 is an 
improvement to safety of the product.
    When ASTM F1004 was updated in 2021 to align with CPSC's mandatory 
standard for gates and enclosures, the standard added the following 
requirement, specific to pressure-mounted gates:
     8.5.7 Pressure-mounted gates that provide wall cups or 
other mounting hardware to meet the requirements of 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.
     8.5.7.1 This warning shall be separate from all other 
warnings required on the product and shall not include any additional 
language.
    However, the illustrated examples of warnings shown in Figures 8 
through 10 were not updated to reflect that a separate warning label 
specific to installing wall cups is required for pressure-mounted gates 
that rely on such hardware to withstand push-out forces. The examples 
of warning labels in ASTM F1004-21 continue to show the statements to 
install wall cups (``You MUST install wall cups to keep the gate in 
place. Without wall cups, child can push out and escape.'') alongside 
other warning statements. The revised standard corrects the illustrated 
examples to reflect that specific requirement in Section 8.5.7 that 
warnings to install wall cups must be conveyed in a separate, 
standalone warning label.
    This change aligns the exemplar warning labels with language in the 
standard emphasizing that pressure-mounted gates that rely on wall cups 
to meet the horizontal push-out requirements must clearly warn the 
consumer that the wall cups must be installed for the product to 
function properly. The standard requires a separate, standalone 
statement, and the examples of illustrated warning labels now reflect 
that standalone warning. The Commission concludes the change is an 
improvement to safety because it reinforces a message that is critical 
to the safe use of the product and provides an example that firms could 
use to meet the standard that is consistent with the requirement in the 
standard.

C. Incorporation by Reference

    Section 1239.2 of the direct final rule incorporates by reference 
ASTM F1004-22. The Office of the Federal Register (OFR) has regulations 
regarding incorporation by reference. 1 CFR part 51. Under these 
regulations, agencies must discuss, in the preamble to a final rule, 
ways in which the material the agency incorporates by reference is 
reasonably available to interested parties, and how interested parties 
can obtain the material. In addition, the preamble to the final rule 
must summarize the material. 1 CFR 51.5(b).
    In accordance with the OFR regulations, section B. Revisions to 
ASTM F1004 of this preamble summarizes the major provisions of ASTM 
F1004-22 that the Commission incorporates by reference into 16 CFR part 
1239. The standard itself is reasonably available to interested 
parties. Until the direct final rule takes effect, a read-only copy of 
ASTM F1004-22 is available for viewing, at no cost, on ASTM's website 
at: https://www.astm.org/CPSC.htm. Once the rule takes effect, a read-
only copy of the standard will be available for viewing, at no cost, on 
the ASTM website at: https://www.astm.org/READINGLIBRARY/. Interested 
parties can also schedule an appointment to inspect a copy of the 
standard at CPSC's Office of the Secretary, U.S. Consumer Product 
Safety Commission, 4330 East West Highway, Bethesda, MD 20814, 
telephone: (301) 504-7479; email: [email protected]. Interested parties 
can purchase a copy of ASTM F2088-22 from ASTM International, 100 Barr 
Harbor Drive, P.O. Box C700, West Conshohocken, PA 19428-2959 USA; 
telephone: (610) 832-9585; www.astm.org.

D. Certification

    Section 14(a) of the Consumer Product Safety Act (CPSA; 15 U.S.C. 
2051-2089) requires manufacturers of 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, 
to certify that the products comply with all applicable CPSC 
requirements. 15 U.S.C. 2063(a). Such certification must be based on a 
test of each product, or on a reasonable testing program, or for 
children's products, on tests of a sufficient number of samples by a 
third party conformity assessment body accredited by CPSC to test 
according to the applicable requirements. As noted, standards issued 
under section 104(b)(1)(B) of the CPSIA are ``consumer product safety 
standards.'' Thus, they are subject to the testing and certification 
requirements of section 14 of the CPSA.
    Because expandable gates and enclosures are children's products, a 
CPSC-accepted third party conformity assessment body must test samples 
of the products. Products subject to part 1239 also must comply with 
all other applicable CPSC requirements, such as the lead content 
requirements in section 101 of the CPSIA,\3\ the tracking label 
requirements in section 14(a)(5) of the CPSA,\4\ and the consumer 
registration form requirements in section 104(d) of the CPSIA.\5\ ASTM 
F1004-22 makes no changes that would impact any of these existing 
requirements.
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    \3\ 15 U.S.C. 1278a.
    \4\ 15 U.S.C. 2063(a)(5).
    \5\ 15 U.S.C. 2056a(d).
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E. Notice of Requirements

    In accordance with section 14(a)(3)(B)(vi) of the CPSA, the 
Commission previously published a notice of requirements (NOR) for 
accreditation of third party conformity assessment bodies for testing 
gates and enclosures. 85 FR 40100 (July 6, 2020). The NOR provided the 
criteria and process for CPSC to accept accreditation of third party 
conformity assessment bodies for testing gates and enclosures

[[Page 68035]]

to 16 CFR part 1239. The NORs for all mandatory standards for durable 
infant or toddler products are listed in the Commission's rule, 
``Requirements Pertaining to Third Party Conformity Assessment 
Bodies,'' codified in 16 CFR part 1112. Id.
    ASTM F1004-22 did not change the testing requirements, testing 
equipment, or testing protocols for gates and enclosures. Accordingly, 
the revisions do not change the way that third party conformity 
assessment bodies test these products for compliance with the safety 
standard for gates and enclosures. Testing laboratories that have 
demonstrated competence for testing in accordance with ASTM F1004-21 
are competent to test in accordance with the revised standard ASTM 
F1004-22. Laboratories will begin testing to the new standard when ASTM 
F1004-22 goes into effect, and the existing accreditations that the 
Commission has accepted for testing to this standard will cover testing 
to the revised standard. Therefore, the Commission considers the 
existing CPSC-accepted laboratories for testing to ASTM F1004-21 to be 
capable of testing to ASTM F1004-22 as well. Accordingly, the existing 
NOR for this standard will remain in place, and CPSC-accepted third 
party conformity assessment bodies are expected to update the scope of 
the testing laboratories' accreditations to reflect the revised 
standard in the normal course of renewing their accreditations.

F. Direct Final Rule Process

    On August 4, 2022, the Commission provided notice in the Federal 
Register of the revision to the standard and requested comment on 
whether the revision improves the safety of gates and enclosures 
covered by the standard. 87 FR 47729. No comments were submitted. Now, 
the Commission is issuing this rule as a direct final rule. Although 
the Administrative Procedure Act (APA; 5 U.S.C. 551-559) generally 
requires agencies to provide notice of a rule and an opportunity for 
interested parties to comment on it, section 553 of the APA provides an 
exception when the agency ``for good cause finds'' that notice and 
comment are ``impracticable, unnecessary, or contrary to the public 
interest.'' Id. 553(b)(B). The Commission concludes that when it 
updates a reference to an ASTM standard that the Commission 
incorporated by reference under section 104(b) of the CPSIA, further 
notice and comment are unnecessary.
    Specifically, under the process set out in section 104(b)(4)(B) of 
the CPSIA, when ASTM notifies CPSC that it has revised a standard that 
the Commission has previously incorporated by reference under section 
104(b)(1)(B) of the CPSIA, that revision will become the new CPSC 
standard, unless the Commission determines that ASTM's revision does 
not improve the safety of the product. Thus, unless the Commission 
makes such a determination, the ASTM revision becomes CPSC's standard 
by operation of law. The Commission is allowing ASTM F1004-22 to become 
CPSC's new standard because its provisions improve the safety of the 
product. The purpose of this direct final rule is to update the Code of 
Federal Regulations (CFR) so that it reflects the version of the 
standard that takes effect by statute. This rule updates the reference 
in the CFR, but under the CPSIA, ASTM F1004-22 takes effect as the new 
CPSC standard for gates and enclosures, even if the Commission does not 
issue this rule. Thus, public comments would not alter substantive 
changes to the standard or the effect of the revised standard as a 
consumer product safety standard under section 104(b) of the CPSIA. 
Under these circumstances, further notice and comment are unnecessary.
    In Recommendation 95-4, the Administrative Conference of the United 
States (ACUS) endorses direct final rulemaking as an appropriate 
procedure to expedite rules that are noncontroversial and not expected 
to generate significant adverse comments. See 60 FR 43108 (Aug. 18, 
1995). ACUS recommends that agencies use the direct final rule process 
when they act under the ``unnecessary'' prong of the good cause 
exemption in 5 U.S.C. 553(b)(B). Consistent with the ACUS 
recommendation, the Commission is publishing this rule as a direct 
final rule, because CPSC does not expect any significant adverse 
comments.
    Unless CPSC receives a significant adverse comment within 30 days 
of this notification, the rule will become effective on January 21, 
2023. In accordance with ACUS's recommendation, the Commission 
considers a significant adverse comment to be ``one where the commenter 
explains why the rule would be inappropriate,'' including an assertion 
challenging ``the rule's underlying premise or approach,'' or a claim 
that the rule ``would be ineffective or unacceptable without a 
change.'' 60 FR 43108, 43111 (Aug. 18, 1995). As noted, this rule 
merely updates a reference in the CFR to reflect a change that occurs 
by statute, and public comments should address this specific action.
    If the Commission receives a significant adverse comment, the 
Commission will withdraw this direct final rule. Depending on the 
comment and other circumstances, the Commission may then incorporate 
the adverse comment into a subsequent direct final rule or publish a 
notice of proposed rulemaking, providing an opportunity for public 
comment.

G. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA; 5 U.S.C. 601-612) generally 
requires agencies to review proposed and final rules for their 
potential economic impact on small entities, including small 
businesses, and prepare regulatory flexibility analyses. 5 U.S.C. 603, 
604. The RFA applies to any rule that is subject to notice and comment 
procedures under section 553 of the APA. Id. As discussed in section F. 
Direct Final Rule Process of this preamble, the Commission has 
determined that further notice and the opportunity to comment are 
unnecessary for this rule. Therefore, the RFA does not apply. CPSC also 
notes the limited nature of this document, which merely updates the 
incorporation by reference to reflect the mandatory CPSC standard that 
takes effect under section 104 of the CPSIA.

H. Paperwork Reduction Act

    The current mandatory standard for gates and enclosures includes 
requirements for marking, labeling, and instructional literature that 
constitute a ``collection of information,'' as defined in the Paperwork 
Reduction Act (PRA; 44 U.S.C. 3501-3521). While the revised mandatory 
standard revises the labeling language for gates and enclosures, the 
revised language would not add to the burden hours because the products 
already require marking, labeling, and instructional literature under 
the current standard. The revised labeling provisions merely require 
different language to that already required by the standard, which 
would impose minimal if any additional burden because the firm is 
already required to put labels on the product. The Commission took the 
steps required by the PRA for information collections when it 
promulgated 16 CFR part 1223, and the marking, labeling, and 
instructional literature for gates and enclosures are currently 
approved under OMB Control Number 3041-0159. Because the information 
collection burden is unchanged, the revision does not affect the 
information collection requirements or approval related to the 
standard.

I. Environmental Considerations

    The Commission's regulations provide a categorical exclusion for 
the Commission's rules from any

[[Page 68036]]

requirement to prepare an environmental assessment or an environmental 
impact statement where they ``have little or no potential for affecting 
the human environment.'' 16 CFR 1021.5(c)(2). This rule falls within 
the categorical exclusion, so no environmental assessment or 
environmental impact statement is required.

J. Preemption

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

K. Effective Date

    Under the procedure set forth in section 104(b)(4)(B) of the CPSIA, 
when a voluntary standards organization revises a standard that the 
Commission adopted as a mandatory standard, the revision becomes the 
CPSC standard within 180 days of notification to the Commission, unless 
the Commission timely notifies the standards organization that it has 
determined that the revision does not improve the safety of the 
product, or the Commission sets a later date in the Federal Register. 
15 U.S.C. 2056a(b)(4)(B). The Commission is taking neither of those 
actions with respect to the standard for gates and enclosures. 
Therefore, ASTM F1004-22 will take effect as the new mandatory standard 
for gates and enclosures on January 21, 2023, 180 days after July 25, 
2022, when the Commission received notice of the revision.

L. 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 CRA submission 
must indicate whether the rule is a ``major rule.'' The CRA states that 
the Office of Information and Regulatory Affairs 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, CPSC 
will submit the required information to each House of Congress and the 
Comptroller General.

List of Subjects in 16 CFR Part 1239

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

    For the reasons discussed in the preamble, the Commission amends 16 
CFR chapter II as follows:

PART 1239--SAFETY STANDARD FOR GATES AND ENCLOSURES

0
1. The authority citation for part 1239 continues to read as follows:

    Authority:  15 U.S.C. 2056a.

0
2. Revise Sec.  1239.2 to read as follows:


Sec.  1239.2   Requirements for gates and enclosures.

    Each gate and enclosure must comply with all applicable provisions 
of ASTM F1004-22, Standard Consumer Safety Specification for Expansion 
Gates and Expandable Enclosures, approved on June 1, 2022. 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. A read-only copy of 
the standard is available for viewing on the ASTM website at https://www.astm.org/READINGLIBRARY/. You may obtain a copy from ASTM 
International, 100 Barr Harbor Drive, P.O. Box C700, West Conshohocken, 
PA 19428-2959; telephone (610) 832-9585; www.astm.org. You may inspect 
a copy at the Office of the Secretary, U.S. Consumer Product Safety 
Commission, 4330 East West Highway, Bethesda, MD 20814, telephone (301) 
504-7479, email [email protected], or at the National Archives and 
Records Administration (NARA). For information on the availability of 
this material at NARA, email [email protected], or go to: 
www.archives.gov/federal-register/cfr/ibr-locations.html.

Alberta E. Mills,
Secretary, Consumer Product Safety Commission.
[FR Doc. 2022-24561 Filed 11-10-22; 8:45 am]
BILLING CODE 6355-01-P