As communication and decision making happens increasingly online, it is more important than ever to encourage the use of electronic signatures for Section 106 Memoranda of Agreement (MOAs) and project Programmatic Agreements (PAs). Since the Section 106 regulations do not provide detail on what signature formats may be used to execute agreement documents, the ACHP is providing information to support the development of best practices to help those considering whether or how to use electronic signatures for Section 106 agreements.

The ACHP is flexible in accepting different forms of electronic signatures to evidence a party’s intent to sign an agreement, provided certain criteria (outlined below) are met. For the purposes of this article, the ACHP uses the broader phrase “electronic signatures,” which can include digital signatures as well as other formats. For agreements requiring the ACHP’s signature, agency officials must ensure that the ACHP’s signature page is unlocked, and that the other signature pages are already merged into one document rather than submitted as multiple single page attachments.  All signatories and invited signatories should have signed before the agreement is sent to the ACHP for execution. As a matter of policy, the ACHP does not sign before other signatories apart from exceptional and rare circumstances. Should an agency feel such a circumstance exists, please contact the relevant ACHP staff.

The electronic signature must be executed by a person with the authority and intent to sign the agreement. In other words, information in the record must contain and indicate the appropriate person’s approval for the electronic signature. In MOAs and PAs, each signature page should include the full title of the agreement so it is clear the signer understands the signature commits his or her agency or organization to the terms of that specific agreement. When transmitting the signed agreement document to consulting parties, an agency should send the message from its official email account, as evidence of the signer’s intent to commit the agency to the agreement. An official transmittal helps substantiate the identity of the signer within the agency or organization. Including a cover letter with the transmittal may also aid in clarifying this information.

The electronic signature must be affixed to the MOA or PA. The following data elements should be associated with the electronic signature: the identity of signer (name, title, position, agency); the date, and possibly the time of signature; the method used to sign the record (e.g., digital process if used); and an indication of the reason for signing (i.e., to execute the agreement). The language provided in the ACHP’s MOA Template immediately above the signatures serves to indicate the reason for signing: “Execution of this MOA by the [Agency abbreviation] and [“S” or “T”]HPO and implementation of its terms evidence that [Agency abbreviation] has taken into account the effects of this undertaking on historic properties and afforded the ACHP an opportunity to comment.”

Finally, there must be a means to preserve the integrity of the signed agreement. This means ensuring the accuracy and completeness of electronic information communicated over the Internet so that no unauthorized alterations can be made to the signed agreement.

It is up to each federal agency, state or tribal office, or other party to determine whether and how to accept electronic signatures. To the extent it facilitates the execution of MOAs and PAs, the ACHP encourages use of electronic signatures consistent with these best practices.