RULES AND REGULATIONS
Title 49—PROFESSIONAL AND VOCATIONAL STANDARDS
STATE ARCHITECTS LICENSURE BOARD
[49 PA. CODE CH. 9]
Digital Signature and Seal
[52 Pa.B. 7702]
[Saturday, December 17, 2022]The State Architects Licensure Board (Board) adds §§ 9.140 and 9.141a (relating to definitions; and digital signature and seal) and amends §§ 9.141, 9.145 and 9.146 (relating to requirement; surrender of seals and stamps; and loss or theft of seals), 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 6(a) of the Architects Licensure Law (act) (63 P.S. § 34.6(a)) authorizes the Board to establish reasonable rules and regulations to carry out the provisions of the act. Further, section 12 of the act (63 P.S. § 34.12) provides the requirement that every architect utilize a seal approved by rules and regulations promulgated by the Board.
Background and Need for this final-form Rulemaking
Section 12(a) of the act requires each licensee to obtain a seal of a design authorized by the Board and to stamp all work product issued by the licensee with that seal. The Board has promulgated § 9.141 to set standards for licensee use of the seal, including the requirement at § 9.141(b)(2) that the licensee also sign the document. 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 allows 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 licensees are permitted to take advantage of this technology and to set standards for its use.
Summary of Comments to the Proposed Rulemaking; the Board's Response and Description of Amendments to this Final-form Rulemaking
Notice of proposed rulemaking was published at 50 Pa.B. 4241 (August 22, 2020). Publication was followed by a 30-day public comment period. The Board did not receive any comments from the public, the Senate Consumer Protection and Professional Licensure Committee (SCP/PLC), or the House Professional Licensure Committee (HPLC). The Independent Regulatory Review Committee (IRRC) reviewed the proposed rulemaking and provided comments and recommendations.
Comments from IRRC
First, IRRC suggested that the Board ensure that this final-form rulemaking is as uniform as possible with the similar regulations submitted by the Landscape Architect Board (16A-6112) and the State Registration Board for Professional Engineers, Land Surveyors and Geologists (16A-4712). The Landscape Architect Board and the State Registration Board for Professional Engineers, Land Surveyors and Geologists share the same board counsel as the State Architects Licensure 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 regulation 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.
Next, IRRC commented on § 9.140 and made recommendations to improve clarity in the definitions of ''digital seal'' and ''digital signature.'' IRRC recommended changing the term ''person'' to ''licensee or architect.'' In consideration of IRRC's comment, the Board revises the definitions of ''digital seal'' and ''digital signature'' by substituting the term ''person'' with ''licensed architect'' to make clear that the definitions relate to a licensed architect. IRRC also recommended that the definitions of ''sole control'' and ''verification'' be changed to include ''signature and seal'' to match the terms used in § 9.141a. The Board agrees with this suggestion and amends the definitions to include the ''signature and seal'' in both definitions.
IRRC recommended that the Board refer to architectural documents consistently throughout this final-form rulemaking. The Board uses a variety of terms to describe documents produced by architects, including the following terms: ''architectural documents;'' ''drawings, reports and documents;'' and ''plans.'' For clarity and to improve consistency throughout this final-form rulemaking, in §§ 9.140, 9.141 and 9.141a, the Board amends this final-form rulemaking by using the term ''architectural documents'' instead of the more specific types of documents produced by architects. The Board also adds a definition for ''architectural documents'' to make it clear to the public what this term encompasses.
IRRC stated that § 9.141(a) requires licensees to obtain a seal authorized by the Board and asked if the Board's 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 § 9.141(a) and as reflected in the Board's Seal Information Notice, which can be found on the Board's web site. To clarify this requirement, the Board amends § 9.141(a) by specifying that the seal design must be identical to the design authorized by the Board. 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 or digital seal. Instead, licensees are required to obtain a seal that complies with the parameters set forth in § 9.141(a). To clarify this requirement, the Board amends § 9.141(a) to clearly state that a stamp design 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).
IRRC also questioned how an electronic sound or process could satisfy the requirements of § 9.141(a). The Board agrees that an electronic sound or process does not satisfy the requirements of § 9.141(a). 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 Architect'' together with a reference to the Commonwealth of Pennsylvania.
IRRC commented regarding § 9.141(b)(1), which states that an architect may use their seal and signature on work being sealed and signed by the architect or under the architect's ''personal supervision, direction and control.'' IRRC suggested that the sentence should be changed to ''sole control'' to be consistent with the terminology used in § 9.140. The Board considered this suggestion and determined that requiring ''sole control'' in this instance is not necessary or appropriate. The term ''control'' in subsection (b)(1) is in reference to work that may be done by an individual under a licensed architect's personal supervision, direction and control. The definition of sole control in § 9.140 is not applicable here because it applies to where and when a licensee applies the signature and seal.
IRRC questioned the Board's intent regarding the amendment to § 9.141(b)(2), which allows the use of digital seals on all subsequent pages of plans. Upon consideration of IRRC's comment, the Board determined that further clarification was necessary. The Board's intent is to require a licensee to use a traditional metal seal or a digital seal on the first page of architectural documents. Accordingly, the Board amends § 9.141(b)(2) to require the seal on the first page of final or complete architectural documents to be impressed, stamped or digital. Section 9.141(b)(2) provides for either facsimile or digital seals on subsequent pages of architectural documents. Thus, a digital seal may appear on the first page and on all subsequent pages. In the alternative, a traditional seal may be used on the first page and either a facsimile or a digital seal may be used on the subsequent pages of architectural documents.
IRRC also asked how the Board intends to address violations with regard to digital seals and suggested that § 9.141(b)(4) raises questions as to the implementation of this regulation regarding violations. Under § 9.141(b)(4), an architect may not affix or permit a seal and signature to be affixed to an architectural document if the architect's license has lapsed, or for the purpose of aiding or abetting another person to evade or attempt to evade a provision of the act or the Board's regulations. This provision is applicable to both traditional and digital seals and signatures. Upon consideration of IRRC's comments, the Board amends § 9.145 to include requirements for the surrender of digital seals and signatures and provides that a licensee may obtain another digital seal and signature upon reinstatement of licensure. IRRC also questioned whether the proposed regulations sufficiently address an architect's responsibilities and obligations whose digital signature or seal is compromised or stolen. Under § 9.146, the Board currently requires a licensee to notify the Board of lost or stolen stamps and seals. When the Board is notified of lost or stolen stamps or seals, the license is monitored in case there is an influx of complaints regarding the quality of work. If this occurs, the Bureau of Enforcement and Investigation determines whether the initiation of an investigation is appropriate. To ensure that the regulations include responsibilities and obligations of an architect whose digital seal or signature is compromised, the Board amends § 9.146 to clarify that this section is also applicable to compromised digital seals and signatures.
IRRC also commented that NCEES Model Rule 240.20(H) contains the following sentence: ''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 in § 9.141a. The Board submits that the requirements as outlined in §§ 9.141 and 9.141a are sufficient to convey the requirements for digital signatures and seals authentication process. Further, under § 9.151 (relating to standards of professional conduct), a licensee who fails to adhere to §§ 9.141 and 9.141a is subject to discipline. Given these provisions, the Board does not include this sentence because it does not think it is necessary to require Board approval of an electronic authentication process.
IRRC also asked that the Board amend § 9.141a(c) to include reference to digital seals. The Board agrees that digital seals should be included in this subsection and also clarifies that any hard copy printed from a transmitted electronic file shall bear the facsimile of the digital signature and seal.
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.
For clarity and consistency, the Board also amends the regulations to remove a reference to gender in § 9.145. In doing so, the Board deletes the term ''his'' and replaces it with ''the architect's.''
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 §§ 9.141 and 9.141a. 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, the 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. 4241 and a copy of a Regulatory Analysis Form to IRRC and to the Chairpersons of the HPLC and the SCP/PLC. A copy of this material is available to the public upon request.
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, as well as other documents when requested. In preparing the final-form rulemaking, the Board has considered all comments received from IRRC. There were no comments received from the HPLC, the SCP/PLC or the public.
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 Amanda Li, Administrator, State Architects Licensure Board, P.O. Box 2649, Harrisburg, PA 17105-2649, ST-ARCHITECT@PA.GOV.
Findings
The Board finds that:
(1) Public notice of the 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 no comments were received.
(3) This final-form rulemaking does not include any amendments that would enlarge the scope of the proposed rulemaking published at 50 Pa.B. 4241.
(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 at 49 Pa. Code Chapter 9, are amended by adding §§ 9.140 and 9.141a and amending §§ 9.141, 9.145 and 9.146 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 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.
JERRY K. ROLLER, RA,
President(Editor's Note: See 52 Pa.B. 6941 (November 5, 2022) for IRRC's approval order.)
Fiscal Note: Fiscal Note 16A-4111 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 9. STATE ARCHITECTS
LICENSURE BOARD
ARCHITECT'S SEAL OF LICENSURE § 9.140. Definitions.
The following words and terms, when used in this section and §§ 9.141 and 9.141a (relating to requirement; and digital signature and seal), have the following meanings, unless the context clearly indicates otherwise:
Architectural documents—Drawings, specifications and other design documents.
Digital seal—An electronic image attached to or logically associated with an architectural document and executed or adopted by a licensed architect with the intent to seal the architectural document.
Digital signature—An electronic sound, symbol or process attached to or logically associated with an architectural document and executed or adopted by a licensed architect with the intent to sign the architectural 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 licensee decides when and where the signature and seal are applied.
Verification—Confirmation that a signature and seal are actually from the licensee whose name and license number appears on the architectural document.
§ 9.141. Requirement.
(a) A licensee shall, upon licensure, obtain a seal, of the identical design authorized by the Board, bearing the licensee's name and license number and the legend, ''Registered Architect'' together with a reference to the Commonwealth of Pennsylvania. A stamp design or digital seal identical to the prescribed seal may be obtained and used in lieu of or in conjunction with, a metal seal.
(b) The following rules govern the proper use of an architect's seal:
(1) An architect may use the architect's seal and signature only when the work being sealed and signed was prepared by the architect or under the architect's personal supervision, direction and control.
(2) When an architect issues final or complete architectural documents to a client for the client's records, or when an architect submits final or complete architectural documents to public or governmental agencies for final review, the seal and signature of the architect who prepared or who personally supervised the preparation of the architectural documents, along with the date of issuance, shall be prominently displayed on the first page of all architectural documents. The seal on the first page of a final or complete architectural document shall be impressed, stamped or digital. Facsimile or digital seals shall appear on all subsequent pages of architectural documents.
(3) When an architect's signature is applied, it shall be applied near or across the seal, but not in a location that obliterates the license number.
(4) An architect may not affix or permit a seal and signature to be affixed to an architectural document if the architect's license has lapsed, or for the purpose of aiding or abetting another person to evade or attempt to evade a provision of the act or this chapter.
(5) When a licensee seals and signs architectural documents one of the following methods must be used:
(i) Physical placement of a seal and a handwritten signature in permanent ink containing the name of the licensee.
(ii) Digital placement of a seal and a handwritten signature in permanent ink containing the name of the licensee.
(iii) Digital placement of a seal and a digital signature containing the name of the licensee.
§ 9.141a. Digital signature and seal.
(a) Architectural 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 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 signature is invalidated if any data in the document is changed.
(b) Architectural 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.
§ 9.145. Surrender of seals and stamps; digital seal and signature.
(a) Metal seal and stamp. If an architect voluntarily surrenders or is required to surrender the architect's seal and stamp to the Board, the surrender shall be made in person or by registered mail to the office of the Board. If the cause of the surrender is forfeiture or revocation, the seal or stamp, or both, will be destroyed by the Board. The destruction will be noted for the record in the file of the architect named on the seal or stamp, or both. If the cause of surrender is suspension, the seal or stamp will be held in security by the Board until the period of the suspension is concluded or the conditions of the suspension have been complied with to the satisfaction of the Board, or both.
(a.1) Digital seal and signature. If an architect is required to surrender a digital seal and signature to the Board, the surrender shall be made by providing a sworn, written affidavit to the Board confirming that the licensee's digital seal and signature has been cancelled. If the cause of surrender is suspension, when the period of the suspension is concluded or the conditions of the suspension have been complied with to the satisfaction of the Board, or both, the licensee may obtain another digital seal and signature upon reinstatement of licensure.
(b) Death of architect. Upon the death of an architect, written notice of the death shall be submitted to the Board by the architect's personal representative. Upon receipt of the notice, the Board will declare the license number and the stamp or seal, or both, of the deceased architect void.
§ 9.146. Loss or theft of seal; compromised digital signature and seal.
(a) Metal seal and digital seal. An architect shall immediately notify the Board upon discovery that the architect's stamp or seal, or both, has been lost, stolen or compromised. Upon receipt of the notice, the Board will declare the lost, stolen or compromised stamp or seal void, and will authorize the issuance of a new registration number and the manufacture of a new stamp or seal. It is unlawful for a person to use the old stamp or seal.
(b) Digital signature. An architect shall immediately notify the Board upon discovery that the architect's digital signature has been compromised.
[Pa.B. Doc. No. 22-1928. Filed for public inspection December 16, 2022, 9:00 a.m.]
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