RULES AND REGULATIONS
Title 49—PROFESSIONAL AND VOCATIONAL STANDARDS
STATE BOARD OF LANDSCAPE ARCHITECTS
[49 PA. CODE CH. 15]
Digital Signature and Seal
[52 Pa.B. 7706]
[Saturday, December 17, 2022]The State Board of Landscape Architects (Board) amends § 15.33 (relating to seals) and adds §§ 15.32a and 15.33a (relating to definitions; and digital signature and seal) to read as set forth in Annex A.
Effective Date
This final-form rulemaking will be effective upon publication in the Pennsylvania Bulletin.
Statutory Authority
Section 4(9) of the Landscape Architects' Registration Law (act) (63 P.S. § 904(9)) authorizes the Board to promulgate regulations, not inconsistent with the act, that it deems necessary and proper to carry into effect the powers conferred by the act. Section 9 of the act (63 P.S. § 909) requires each landscape architect registered under the act to obtain a seal of the design authorized by the Board.
Background and Need for this Final-Form Rulemaking
Section 9(a) of the act requires each registrant to obtain a seal of a design authorized by the Board and to stamp all work product issued by the registrant with that seal. The Board promulgated § 15.36(c) (relating to permitted practices), which requires a registrant to sign the documents which arise out of professional services. The Board has also promulgated § 15.33 to set standards for licensee use of the seal. However, these regulations were developed when the seal was applied with a metal embosser or a rubber stamp. It was not contemplated that a seal or signature could be placed electronically through the personal use of computer technology by placing an image of the seal or signature on a document and it was not contemplated that a document could be signed digitally other than by placing an image of the signature on the document. With this technology now available, the National Council of Examiners for Engineering and Surveying (NCEES), the National organization of engineering and land surveying licensing boards, has addressed its use in paragraph H of section 240.20 (relating to seal on documents) of its Model Rules at https://ncees.org/wp-content/uploads/Model_Rules_2021_ web.pdf. Additionally, the Uniform Electronic Transactions Act (UETA) has been adopted by many states, including this Commonwealth. In this Commonwealth, UETA was enacted as the Electronic Transactions Act (73 P.S. §§ 2260.101—2260.5101). The Board adopts definitions and provisions consistent with the Electronic Transactions Act for these regulations. Other State agencies must comply with the Pennsylvania Electronic Transactions Act under section 303(a) of the Electronic Transactions Act (73 P.S. § 2260.303(a)) in that they may not deny the legal effect or enforceability of a seal solely because it is in electronic form.
This final-form rulemaking will allow licensees to use digital signatures and seals to increase electronic commerce and electronic communications, increase electronic filing of documents, help establish uniformity of rules and standards regarding the authentication and integrity of electronic records and promote public confidence in the integrity and reliability of electronic records. The Board believes that it is appropriate to amend its regulations to make it clear that registrants are permitted to take advantage of this technology and to set standards for its use.
Summary of Comments to the Proposed Rulemaking and the Board's Response
Notice of proposed rulemaking was published at 50 Pa.B. 4243 (August 22, 2020). Publication was followed by a 30-day public comment period. The Board did not receive any comments from the Senate Consumer Protection and Professional Licensure Committee (SCP/PLC), or the House Professional Licensure Committee (HPLC). The Board received one comment from the public. The Independent Regulatory Review Committee (IRRC) reviewed the proposed rulemaking and provided comments and recommendations.
Comments from the public
The Board received one comment from the public. The Pennsylvania-Delaware Chapter of the American Society of Landscape Architects commented in support of the proposed rulemaking but asked the Board to consider including criteria for software in this final-form rulemaking. The Board does not believe it is necessary to set forth specific criteria for software and instead, provides registrants with the ability to determine which software packages are best suited for their specific needs so long as they meet the regulatory requirements of § 15.33a.
Comments from IRRC
First, IRRC asked the Board to ensure that this final-form rulemaking is as uniform as possible with the similar final-form rulemakings submitted by the Architects Licensure Board (Architect Board) (16A-4111) and the State Registration Board for Professional Engineers, Land Surveyors and Geologists (Engineer Board) (16A-4712). The Architect Board and the Engineer Board share the same board counsel as the Landscape Architects Board, and each board meets on a regular basis. The boards have been reviewing this digital seal and signature regulation frequently to ensure that each board's final-form rulemaking is consistent with the others to the extent possible, given the differing statutory and regulatory framework. The Board has reviewed and compared this final-form rulemaking with the final-form rulemakings of the other boards and finds this final-form rulemaking to be consistent and clear for the regulated community.
In this final-form rulemaking and the Engineer Board's final-form rulemakings, IRRC questioned how an electronic sound or process could satisfy the requirements of the digital seal and signature requirements. In reviewing this question, and in an effort to keep the final-form rulemakings among the boards consistent, the Board determined that it should revise the definition of digital seal. The Board agrees that an electronic sound or process does not satisfy the requirements of § 15.33. As such, the Board amends the definition of ''digital seal'' by changing ''electronic sound, symbol or process'' to ''electronic image'' to ensure that a digital seal includes an image of the licensee's name and license number and the legend ''Registered Landscape Architect'' together with a reference to Pennsylvania. In accordance with IRRC's suggestion to ensure that the regulations are as uniform as possible, the Board reviewed and compared the Architect Board regulations relating to loss or theft of seals. This Board does not have existing regulations relating to loss or theft of seals. Adding a new section to this final-form rulemaking package would go beyond the scope of the proposed rulemaking and would require more discussion, consideration and stakeholder outreach than the final-form rulemaking process allows. If the Board determines that a regulation is needed, it will propose it in a separate rulemaking.
IRRC commented on § 15.32a and made recommendations to improve clarity in the definitions of ''digital seal'' and ''digital signature.'' IRRC recommended changing the term ''person'' to ''licensee or registrant'' within the definitions of ''digital seal'' and ''digital signature.'' IRRC also recommended that the definitions of ''sole control'' and ''verification'' be changed to include ''signature and seal'' to match the terms used in § 15.33a(a) and (b). The Board agrees with IRRC's recommendations and makes the suggested changes.
In both the Architect Board and Engineer Board digital seal regulations, IRRC questioned if the intent was for the digital seal design and the Board-approved seal to be identical. Like all seals used by licensees, the digital seal must be identical to the design approved by the Board, as set forth in § 15.33. To clarify this requirement, the Board amends § 15.33(c) by specifying that the seal design must be identical to the design authorized by the Board.
IRRC questioned whether the requirements of § 15.33(c) apply to a digital seal and asked whether a digital seal is a facsimile of the seal authorized by the Board. Section 15.33(c) is applicable to digital seals. Digital seals are not the same as facsimiles of a seal. The Board notes that a digital seal is a digitally secure image of the seal used on a licensee's work product. A facsimile of the seal is a replication of the approved image of the Board-approved seal and is not digitally secure. IRRC also asked whether licensees are required to apply for a traditional (physical) seal before using a digital seal. Licensees are not required to apply for approval of a traditional seal. Instead, licensees are required to obtain a seal or stamp that complies with the parameters set forth in § 15.33. To clarify this requirement, the Board amends § 15.33(c) to clearly state that a stamp or digital seal identical to the prescribed seal may be obtained and used instead of, or in conjunction with, a metal seal. Thus, the Board's regulations require the licensee to obtain a seal but provide the licensee with the discretion to select the type of seal (for example, metal, stamp, digital). Providing all design professionals in this Commonwealth with regulations that are as consistent as possible with respect to both traditional seals and digital seals will benefit not only the design professionals but also their clients in the public and private sectors. Providing consistency regarding all seals will help eliminate confusion among clients in the public and private sectors and those members of the public who may view documents prepared by design professionals.
IRRC commented regarding the requirement to obtain an authorized seal or stamp that aligns with the sample of the visual depiction of the seal in § 15.33(c). The approved seal must contain the licensee's name above the three stars within the seal and the registration number within the keystone of the seal. IRRC noted that the annex indicates that the seal must include a reference to the ''Commonwealth of Pennsylvania,'' but the actual seal as seen in § 15.33(c) only requires a reference to ''Pennsylvania.'' To clarify this requirement, the Board amends the language in Annex A to remove reference to ''the Commonwealth of.''
IRRC commented that NCEES Model Rule 240.20(H) states that a ''digital signature that uses a process approved by the board will be presumed to meet the criteria set forth in section H above.'' IRRC asked why the Board omitted this provision. The process outlined in §§ 15.33 and 15.33a contains the specific requirements for the digital signatures and seals authentication process. Further, under § 15.63 (relating to misconduct), a licensee who fails to adhere to §§ 15.33 and 15.33a is subject to discipline. Given these provisions, the Board does not include this sentence because it does not think it is necessary to reiterate that §§ 15.33 and 15.33a must be followed to meet the criteria for a valid digital signature and seal. IRRC also asked why the Board, in § 15.33a(c), did not include digital seal in reference to alterations to an electronic file. The Board agrees with IRRC and makes this amendment. The Board also clarifies that any alterations to a file will cause both the signature and seal to be voided.
IRRC asked that the numbers in RAF questions 15, 20, 21 and 23 be updated in this final-form rulemaking. These updates are made.
Lastly, IRRC commented that the preamble cites to the Digital Signature and Electronic Authentication Law, which was a bill that was not enacted. The reference to this bill is not included in this final-form rulemaking preamble.
Fiscal Impact and Paperwork Requirements
Because the use of digital signatures and seals are voluntary rather than mandatory, this final-form rulemaking will not have a fiscal impact on, or create additional paperwork for, the regulated community, the general public, or the Commonwealth and its political subdivisions that choose to continue utilizing a traditional seal and stamp. Licensees who decide to use digital seals and signatures will be required to utilize appropriate security software that meets the requirements for digital seals and signatures as set forth in §§ 15.32a through 15.33a. This software is available from a variety of vendors. Costs will vary from one vendor to another, and costs will also vary depending on the number of individuals who will use a digital seal and signature within a firm. For example, according to DocuSign and Adobe, sole proprietor firms using digital seals and signatures and purchasing a user license will likely select a plan where the cost for a single user license is $15 per month or $165 per year, which allows 1 month at no charge. For the same vendors, firms with more than ten licensees using digital seals and signatures and purchasing user licenses for their licensees may be able to negotiate a lower fee, depending on the number of licensees, with a higher number of licensees paying a lower fee. Under both plans offered by this vendor, there is no limit on the number of digital seals or signatures that a licensee may use. The Board also anticipates that as the number of users of digital seals and signatures increases over time, it is likely that the costs of purchasing digital seal and signature technology will decrease.
However, these costs to those utilizing digital seals and signatures will be outweighed by the savings realized by individuals continuing to use a ''wet signature.'' According to Cadalyst (a reviewer of computer aided design software and hardware), the architecture, engineering and construction industry spends an estimated $500 million or more each year moving plans from one discipline to another by way of courier services such as FedEx and UPS. One vendor of digital seals estimates that the average cost of toner, ink and paper costs $.03 per page, and further states that costs are even greater for firms and organizations with multiple locations or field staff that need to submit formal reports or contracts. According to Oasis Systems (a provider of information technology, systems engineering, professional services and enterprise applications to Federal agencies), the average paper document is copied 9 times to 11 times at a cost of approximately $18 and filed at a cost of approximately $20, plus the added cost of storage, media, space, postage and distribution. Pitney Bowes estimates that the average cost of Fortune-500 paper documents is $10 per document. Pfizer estimates the cost of one ''wet signature'' at $30, including the time to track down the signer, plus storage and scanning costs.
Sunset Date
The Board continuously monitors the effectiveness of its regulations. Therefore, no sunset date has been assigned.
Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P.S. § 745.5(a)), on August 11, 2020, the Board submitted a copy of the notice of proposed rulemaking, published at 50 Pa.B. 4243, and a copy of a Regulatory Analysis form to IRRC and to the Chairpersons of the HPLC and the SCP/PLC.
Under section 5(c) of the Regulatory Review Act, IRRC, the HPLC and the SCP/PLC were provided copies of the comments received during the public comment period, if any, as well as other documents when requested. In preparing the final-form rulemaking, the Board has considered all comments from IRRC and the public. There were no comments received from the HPLC or the SCP/PLC.
Under section 5.1(a) of the Regulatory Review Act (71 P.S. § 745.5a(a)), on August 31, 2022, the Board delivered this final-form rulemaking to IRRC, the HPLC and the SCP/PLC. Under section 5.1(g)(3) and (j.2) of the Regulatory Review Act (71 P.S. § 745.5a(g)(3) and (j.2)), on October 19, 2022, the final-form rulemaking was deemed approved by the HPLC and the SCP/PLC. Under section 5.1(e) of the Regulatory Review Act, IRRC met on October 20, 2022, and approved the final-form rulemaking.
Additional Information
Additional information may be obtained by contacting Terrie Kocher, Administrator, State Board of Landscape Architects, P.O. Box 2649, Harrisburg, PA 17105-2649, ST-LANDSCAPE@PA.GOV.
Findings
The Board finds that:
(1) Public notice of proposed rulemaking was given under sections 201 and 202 of the act of July 31, 1968 (P.L. 769, No. 240) (45 P.S. §§ 1201 and 1202), referred to as the Commonwealth Documents Law, and the regulations promulgated thereunder, 1 Pa. Code §§ 7.1 and 7.2 (relating to notice of proposed rulemaking required; and adoption of regulations).
(2) A public comment period was provided as required by law and all comments were considered in drafting this final-form rulemaking.
(3) This final-form rulemaking does not include any amendments that would enlarge the scope of the proposed rulemaking published at 50 Pa.B. 4243.
(4) This final-form rulemaking is necessary and appropriate for administration and enforcement of the act.
Order
The Board orders that:
(a) The regulations of the Board, 49 Pa. Code Chapter 15, are amended by amending § 15.33 and adding §§ 15.32a and 15.33a to read as set forth in Annex A.
(b) The Board shall submit this final-form rulemaking to the Office of General Counsel and to the Office of Attorney General for approval as required by law.
(c) The Board shall submit this final-from rulemaking to IRRC, the HPLC and the SCP/PLC for approval as required by law.
(d) The Board shall certify this final-form rulemaking and deposit it with the Legislative Reference Bureau as required by law.
(e) This final-form rulemaking shall take effect immediately upon publication in the Pennsylvania Bulletin.
DAVID B. MORGAN, RLA,
Chairperson(Editor's Note: See 52 Pa.B. 6941 (November 5, 2022) for IRRC's approval order.)
Fiscal Note: Fiscal Note 16A-6112 remains valid for the final adoption of the subject regulations.
Annex A
TITLE 49. PROFESSIONAL AND
VOCATIONAL STANDARDS
PART I. DEPARTMENT OF STATE
Subpart A. PROFESSIONAL AND
OCCUPATIONAL AFFAIRS
CHAPTER 15. STATE BOARD OF
LANDSCAPE ARCHITECTS
ADMINISTRATION § 15.32a. Definitions.
The following words and terms, when used in this section and §§ 15.33 and 15.33a (relating to seals; and digital signature and seal), have the following meanings, unless the context clearly indicates otherwise:
Digital seal—An electronic image attached to or logically associated with a document and executed or adopted by a licensee with the intent to seal the document.
Digital signature—An electronic sound, symbol or process attached to or logically associated with a document and executed or adopted by a licensee with the intent to sign the document.
Electronic—Relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic or similar capabilities.
Handwritten signature—The scripted name or legal mark of an individual, written by that individual and executed or adopted with the present intention to authenticate a writing in a permanent form.
Sole control—A situation in which only the registrant decides when and where the signature and seal are applied.
Verification—Confirmation that a signature and seal are actually from the registrant whose name and license number appears on the document.
Work product—Drawings, specifications, plans, models and other deliverable documents representing the professional practice of landscape architecture.
§ 15.33. Seals.
(a) An approved seal or stamp will be required for a registrant for the purpose of signing and sealing drawings, preliminary documents, specifications and contract documents or other work product.
(b) Only one registered landscape architect's name may be used per seal. However, more than one seal or stamp may appear on drawings, specifications and documents or other work product.
(c) A registrant shall be required to obtain the authorized seal or a rubber stamp, bearing the registrant's name and registration number and the legend ''Registered Landscape Architect'' together with a reference to Pennsylvania. A digital seal or rubber stamp identical to the prescribed seal may be obtained and used in lieu of, or in conjunction with, a metal seal.
A sample seal is as follows:
Landscape Architect (d) A licensee who fails to obtain a seal or rubber stamp will be subject to disciplinary action and penalties under section 11(b) of the act (63 P.S. § 911(b)).
(e) When a registrant seals and signs landscape architectural drawings, reports, documents and other work product, one of the following methods must be used:
(1) Physical placement of a seal and a handwritten signature in permanent ink containing the name of the registrant.
(2) Digital placement of a seal and a handwritten signature in permanent ink containing the name of the registrant.
(3) Digital placement of a seal and a digital signature containing the name of the registrant.
§ 15.33a. Digital signature and seal.
(a) Drawings, reports and documents that are signed using a digital signature must have an electronic authentication process attached to or logically associated with the electronic document. The digital signature must be:
(1) Unique to the registrant.
(2) Capable of verification.
(3) Under the sole control of the registrant.
(4) Linked to a document in such a manner that the digital signature is invalidated if any data in the document is changed.
(b) Drawings, reports and documents that are sealed with a digital seal must have an electronic authentication process attached to or logically associated with the electronic document. The digital seal must be:
(1) Unique to the licensee.
(2) Capable of verification.
(3) Under the sole control of the licensee.
(4) Linked to a document in such a manner that the digital seal is invalidated if any data in the document is changed.
(c) A hard copy printed from the transmitted electronic file shall bear the facsimile of the digital signature and seal and be a confirmation that the electronic file was not altered after the initial digital signing of the file. Alterations to the file shall cause the signature and seal to be voided.
[Pa.B. Doc. No. 22-1929. Filed for public inspection December 16, 2022, 9:00 a.m.]
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