Sep. 14, 2021

HARRISBURG – House Health Committee Majority Chair Kathy Rapp (R-Warren/Crawford/Forest) convened a voting meeting on Tuesday to adopt the letter (excerpted below) requesting a determination from the Commonwealth Joint Committee on Documents on whether the acting Health secretary’s K-12 schools and child care centers indoor masking mandate is subject to the regulatory process and the Regulatory Review Act:

“On behalf of the Pennsylvania House of Representatives Health Committee, I am writing to request a determination, pursuant to section 7.1 of the Regulatory Review Act, that the Order of the Acting Secretary of the Pennsylvania Department of Health Directing Face Coverings in School Entities, effective beginning on Sept. 7, 2021, should be promulgated as a regulation.

“Failure to implement and follow the control measures under the order subjects a person to the penalty provisions of the Disease Prevention and Control Law of 1955 (DPCL) and purportedly may also result in the loss of sovereign immunity exposing individuals to personal liability…(relating to willful misconduct), as well as other remedies as provided by law.

“Based upon the facts above, acting Secretary Beam violated the law by issuing the Aug. 3l Order because the order is a ‘rule’ or ‘regulation’ and Beam did not follow the rulemaking procedures that are required under the Commonwealth Documents Law and the Regulatory Review Act.

“The General Assembly enacted the Regulatory Review Act to establish a structured procedure for oversight and review of regulations adopted pursuant to its delegation of legislative power to the numerous Commonwealth departments, agencies, boards, and commissions within the executive branch of government to adopt rules and regulations to implement statutes. The Regulatory Review Act fosters executive branch accountability and provides ultimate review of regulations by the General Assembly.

“Only when an agency’s substantive regulations are properly enacted under the Commonwealth Documents Law, do they have the force and effect of law.

“The order, when applied, restricts the discretionary power of the Department of Health and is, thus, like a regulation. It mandates all individuals connected to a school entity to wear a face covering unless they qualify under one of the state exceptions.

“In conclusion, the application and effect of the language in the Order shows the pronouncement to be restrictive, directive and substantive—all of the characteristics of a regulation.

“Accordingly, the House Health Committee requests a determination by the Joint Committee on Documents that the order issued by the acting Secretary of Health on Aug. 31,2021, is an order in the nature of a regulation and is subject to the regulatory process. Given that the Order is currently ‘effective,’ the Committee also respectfully asks that this determination be expedited.”

Read Chair Rapp’s complete letter and list of signatories.

Representative Kathy Rapp
65th District
Pennsylvania House of Representatives