PLEASE TAKE NOTICE that the Department of Agriculture and Markets proposes to adopt a rule amending Part 221 of Title 1 NYCRR, in relation to regulated commodities labeling, packaging and method of sale requirements. The original Notice of Proposed Rulemaking (“Original Notice”) was published in the August 4, 2021 edition of the State Register, Vol XLIII, Issue 31, was assigned I.D. No. AAM-31-21-00014-P.

The Original Notice provided that a public hearing was to have been held on September 15, 2021 but the hearing was not held on that date due to a typographical error in the access code set forth in the Original Notice.

PLEASE TAKE FURTHER NOTICE that the public hearing is now scheduled to be held, via teleconference, on October 13, 2021, at 11:00 a.m.; persons who wish to provide comments should call in, using the telephone number 1-518-549-0500, and the access code 161 831 0722.

Pursuant to 10 NYCRR 2.62, I hereby issue the following determination, which includes findings of necessity, to support the testing requirements set forth below:

Findings of necessity:

The Centers for Disease Control and Prevention (CDC) has identified a concerning national trend of increasing circulation of the Delta COVID-19 variant, which is approximately twice as transmissible as the early SARS-CoV-2 strain. Since early July, cases have risen 10-fold, and 95 percent of sequenced recent positives in New York State were the Delta variant.

Certain settings and areas (i.e., healthcare, schools, and public places located in CDC-identified areas of substantial or high community transmission) pose increased challenges and urgency for controlling the spread of this disease because of the vulnerable populations served, the disproportionate percentage of individuals (i.e., children) who are not yet eligible for the COVID-19 vaccination, and/or the substantial to high levels of community transmission. Regular COVID-19 testing enables the immediate identification of COVID-19-positive individuals, even if they are not symptomatic, so that they can isolate and prevent further transmission. Additionally, the reporting of positive COVID-19 test results to public health authorities facilitates the rapid initiation of contact tracing to ensure close contacts are quarantined, tested, and isolated as needed.

The CDC’s recommendation for testing, including its associated scientific justification, is available at: https://www.cdc.gov/coronavirus/2019-ncov/science/science-briefs/transmission_k_12_schools.html#in-person.

Based on the foregoing findings of necessity, I hereby issue the following testing requirements:

Testing Requirement:

After careful review and consideration of the above referenced CDC recommendations for COVID-19 testing, effective immediately and for as long as this determination remains in effect, all P-12 schools are hereby required to implement testing consistent with the following:

1. Definitions and Application

a. Teachers and Staff. This determination applies to all P-12 (public or non-public) school district faculty or staff, including all teachers, substitute teachers, student teachers, school administrators, paraprofessional staff, and support staff, including bus drivers. This determination also applies to contractors working in a P-12 school (public or non-public) or school district setting, including contracted bus drivers.

b. P-12 schools. This determination applies to P-12 elementary and secondary, public, charter, private, and state-operated schools, including residential schools and programs serving students with disabilities, as regulated by the NYS Education Department. It does not apply to institutions of higher education. It does not apply to “standalone” pre-kindergarten schools (that is, schools that only serve pre-kindergarten students and are not located in a building that also serves older students).

2. Screening

a. Testing Requirement for teachers and staff: P-12 schools are required to ensure teachers and staff, as outlined above, have testing performed for COVID-19 at least once per week when a school is in a geographic area identified by the CDC as having low, moderate, substantial, or high transmission rates. Teachers and staff may be permitted to opt-out of mandatory weekly screening testing if they provide documentation of being fully vaccinated against COVID-19, as set forth in 10 NYCRR 2.62. Teachers and staff who work at multiple schools do not need to receive multiple tests; they may use one weekly test result to demonstrate to any number of schools where they work that they have fulfilled this requirement.

b. Offer screening testing for students (obtain parent or guardian consent for minors, and where otherwise required pursuant to school policy): P-12 schools are required to offer screening testing to unvaccinated students on a weekly basis in geographic areas identified by the CDC as having moderate, substantial, or high transmission rates.

3. Diagnostic testing

a. Schools must have the capacity (either directly on-site or via referral) to provide diagnostic testing, for any students, teachers or staff, who regardless of vaccination status and community level of transmission per the CDC, are:

i. Symptomatic; or

ii. Asymptomatic following exposure to someone with COVID-19.

4. Special Requirements for Return to School Testing

a. All school students, teachers, and staff with new or worsening symptoms of COVID-19 must be excluded from school, regardless of vaccination status, and either (a) provide a negative COVID test result, or (b) remain excluded from school for a minimum of 10 calendar days from symptom onset, prior to returning to school. If student, teacher, or staff symptoms are improving AND they are fever-free for at least 24 hours without the use of fever reducing medicines, they may return to school with either a note from the healthcare provider indicating the test was negative OR a copy of the negative test result. Given the growing prevalence of breakthrough infections among vaccinated populations nationwide, there is no recommended exemption for symptomatic vaccinated people.

b. Nucleic acid amplification tests (known as NAATs, such as polymerase chain reaction, or PCR tests) are the most sensitive type of test available and the best option for ensuring that symptomatic people with COVID-19 are excluded from school. The Department expectation is that all schools require a negative NAAT result for people with new or worsening symptoms of COVID-19 to return to school.

However, the Department recognizes that antigen tests are widely available and may produce results faster than NAATs; however, these tests are generally less sensitive than NAATs and can fail to detect cases of COVID-19 in symptomatic individuals. The Department further recognizes that in some circumstances the public health benefits of requiring a negative NAAT might be outweighed by the negative effects of lost educational opportunity while people are excluded from school pending the NAAT result. Therefore, when the following criteria apply, schools may require a negative antigen test result rather than a negative NAAT test result for people with new or worsening symptoms to return to school (in all other cases, a NAAT, such as PCR, may be required to return to school, along with meeting other requirements based on school policies and the specific situation, such as quarantine):

i. The rates of COVID-19 in the county are low.

ii. The school is not experiencing an active, ongoing outbreak.

iii. The individual in question does not have known exposure to COVID-19, has not had a fever during the illness, and does not have symptoms that increase the likelihood that the illness is COVID-19 (i.e., loss of taste or smell).

iv. Symptomatic individuals allowed to return to school with a negative antigen test must:

• Meet other school or district requirements to attend school after illness,

• Not have rhinorrhea (runny nose) or cough severe enough to make mask wear difficult or unhygienic, and

v. The school or district has sought input from and discussed the risks and benefits of this option with parents, teachers, and the school community at large.

vi. The school/district has educated families about:

• The possibility of missing a case of COVID-19 using antigen tests and the possible preference for NAAT testing for reasons other than school attendance.

• The advantages of keeping children with non-COVID-19 illnesses at home to prevent transmission of these illnesses to other children, who then would need COVID-19 testing, and

• The practice of accepting a negative antigen test result in a symptomatic person as a conclusive indication of the absence of COVID-19 infection is inconsistent with NYSDOH and CDC guidance.

c. Exceptions to the testing requirement set forth above include:

i. Individuals with symptoms that are attributable to pre-existing medical conditions (e.g., migraines, allergies) and are not new or worsening do not require school exclusion; or

ii. If the HCP provides a diagnosis of a known chronic condition with unchanged symptoms, or a confirmed acute illness (examples: laboratory-confirmed influenza, strep-throat) AND COVID-19 is not suspected, then a note signed by their HCP explaining the alternate diagnosis is required before a student, teacher or staff member may be allowed to return to school. Such individuals may return to school according to the usual guidelines for that diagnosis.

5. Authorized Tests

Any testing—screening, diagnostic, and/or pooled testing—must be FDA or DOH authorized and be performed by a NYS approved laboratory to ensure all NYS regulatory and reporting requirements are met. Schools using a laboratory to perform screening or diagnostic testing need to ensure that the laboratory holds the appropriate NYS approvals to perform testing. Laboratories that perform high complexity NAAT are required to hold a clinical laboratory permit; to determine if a laboratory has a clinical laboratory permit, a search can be performed here. Laboratories that perform waived, point of care testing are required to be registered as an LSL; to determine if a laboratory has an LSL, a search can be performed here. Some laboratories that held temporary approval to perform COVID-19 testing will be allowed to continue testing; to determine if a temporarily approved laboratory can perform COVID-19 testing, contact [email protected]. If you cannot determine if the laboratory is approved, contact [email protected]

The New York State Department of State (DOS) is required by Federal regulations to provide timely public notice for the activities described below, which are subject to the consistency provisions of the Federal Coastal Zone Management Act of 1972, as amended.

The applicant has certified that the proposed activity complies with and will be conducted in a manner consistent with the approved New York State Coastal Management Program. The applicant's consistency certification and accompanying public information and data are available for inspection on the New York State Department of State’s website at: https://dos.ny.gov/system/files/documents/2021/09/f-2021-0640a.pdf and https://dos.ny.gov/system/files/documents/2021/09/f-2021-0640b.pdf

In F-2020-0640, or the “Crescent Beach Barrier Bar REDI Project”, the applicant – Wayne County – proposes to construct offshore barrier rock reefs, enhanced with root wads, vegetation, and fish habitat structures to reduce the wave energy hitting the shoreline and causing shoreline erosion. The Project Area consists of the entire length of Crescent Beach (1.5 miles) and the adjacent portion of Lake Ontario. The proposed BRRs include 14 separate segments ranging from approximately 220 to 1,100 feet in length. The crests of the BRRs extend into Lake Ontario approximately 75 to 375 feet from the shoreline. The BRRs will be used in combination with other natural and nature-based features such as rock piles, root wads, and vegetation to further reduce the wave energy and enhance the aquatic habitat value landward of the BRRs. In addition, stone armor is proposed along the barrier bar breach to reduce further expansion.

The purpose of this project is to reduce the risk of erosion to the shoreline of Crescent Beach and the erosion of the barrier bar between Lake Ontario and Sodus Bay. The project is located at Crescent Beach in the Towns of Huron and Sodus, Wayne County on Lake Ontario and Sodus Bay.

Any interested parties and/or agencies desiring to express their views concerning the above proposed activities may do so by filing their comments, in writing, no later than 4:30 p.m., 15 days from the date of publication of this notice, or, October 7, 2021.

Comments should be addressed to: Department of State, Office of Coastal, Local Government and Community Sustainability, One Commerce Plaza, 99 Washington Ave., Suite, 1010, Albany, NY 12231, (518) 474-6000, Fax (518) 474-6572. This notice is promulgated in accordance with Title 15, Code of Federal Regulations, Part 930.

Pursuant to 19 NYCRR Part 1205, the variance and appeal petitions below have been received by the Department of State. Unless otherwise indicated, they involve requests for relief from provisions of the New York State Uniform Fire Prevention and Building Code. Persons wishing to review any petitions, provide comments, or receive actual notices of any subsequent proceeding may contact Brian Tollisen or Neil Collier, Building Standards and Codes, Department of State, One Commerce Plaza, 99 Washington Ave., Albany, NY 12231, (518) 474-4073 to make appropriate arrangements.

2021-0440 Matter of Christine and Al Dupuis, 1661 Old Country Rd., 116B, Riverhead, NY 11901, for a variance concerning safety requirements, including the height under a girder/soffit. Involved is an existing one-family dwelling located at 180 Merritts Pond Road, Town of Riverhead, NY 11901, County of Suffolk, State of New York.