To clarify restrictions on the deaccessioning of items and materials in collections held by museums and historical societies.
Text of proposed rule:
1. Paragraph (6) of subdivision (c) of section 3.27 of the Rules of the Board of Regents is amended, effective June 8, 2011, as follows:
(6) Collections Care and Management. The institution shall:
(i) . . .
(ii) . . .
(iii) ensure that deaccessioning of items or materials in its collection is limited to the circumstances prescribed in paragraph (7) of this subdivision;
(iv) have a written collections management policy providing clear standards to guide institutional decisions regarding the collection, that is in regular use, available to the public upon request, filed with the commissioner for inspection by anyone wishing to examine it; and which, at a minimum, satisfactorily addresses the following subject areas:
(a) . . .
(b) . . .
(c) . . .
(d) . . .
(e) deaccession. The criteria and process (including levels of permission) used for determining what items are to be removed from the collections, which shall be consistent with paragraph (7) of this subdivision, and a statement limiting the use of any funds derived therefrom in accordance with subparagraph (vii) of this paragraph;
[(iv)] (v) ensure that collections or any individual part thereof and the proceeds derived therefrom shall not be used as collateral for a loan;
[(v)] (vi) ensure that collections shall not be capitalized; and
[(vi)] (vii) ensure that proceeds derived from the deaccessioning of any property from the institution's collection be restricted in a separate fund to be used only for the acquisition of collections, or the preservation, [protection] conservation or direct care of collections. In no event shall proceeds derived from the deaccessioning of any property from the collection be used for operating expenses or for any purposes other than the acquisition, preservation, [protection] conservation or direct care of collections.
2. Paragraph (7) of subdivision (c) of section 3.27 of the Rules of the Board of Regents is amended, effective June 8, 2011, as follows:
(7) Deaccessioning of Collections. An institution may deaccession an item in its collection only in a manner consistent with its mission statement and collections management policy and where one or more of the following criteria have been met:
(i) the item is inconsistent with the mission of the institution as set forth in its mission statement;
(ii) the item has failed to retain its identity;
(iii) the item is redundant;
(iv) the item's preservation and conservation needs are beyond the capacity of the institution to provide;
(v) the item is deaccessioned to accomplish refinement of collections;
(vi) it has been established that the item is inauthentic;
(vii) the institution is repatriating the item or returning the item to its rightful owner;
(viii) the institution is returning the item to the donor, or the donor's heirs or assigns, to fulfill donor restrictions relating to the item which the institution is no longer able to meet;
(ix) the item presents a hazard to people or other collection items; and/or
(x) the item has been lost or stolen and has not been recovered.
[(7)] (8) Education and Interpretation. The institution shall offer programmatic accommodation for individuals with disabilities to the extent required by law.
3. Subdivision (e) of section 3.27 of the Rules of the Board of Regents is amended, effective June 8, 2011, as follows:
(e) Annual reports. Each institution shall file with the commissioner an annual report, in a form prescribed by the commissioner, which records the educational and cultural activities of the institution and presents an accurate statement of all financial operations. Each institution shall include in its annual report a list of all items or item lots deaccessioned in the past year and all items or item lots disposed of in the past year.
Text of proposed rule and any required statements and analyses may be obtained from:
Chris Moore, State Education Department, Office of Counsel, State Education Building, Room 148, 89 Washington Ave., Albany, NY 12234, (518) 473-8296, email: legal@mail.nysed.gov
Data, views or arguments may be submitted to:
Jeffrey W. Cannell, Deputy Comm. for Cultural Education, State Education Department, Cultural Education Center, Room 10C34, Albany, NY 12230, (518) 474-5930
Public comment will be received until:
45 days after publication of this notice.
Regulatory Impact Statement
1. STATUTORY AUTHORITY:
Education Law section 101 continues the existence of the Education Department, with the Board of Regents as its head, and authorizes the Board of Regents to appoint the Commissioner of Education as the Chief Administrative Officer of the Department, which is charged with the general management and supervision of all public schools and the educational work of the State.
Education Law section 207 empowers the Board of Regents and the Commissioner of Education to adopt rules and regulations to carry out the laws of the State regarding education and the functions and duties conferred on the State Education Department by law.
Education Law section 215 authorizes the Regents, the Commissioner, or their representatives, to visit, examine and inspect education corporations and other institutions admitted to the University of the State of New York, as defined in Education Law section 214, and to require, as often as desired, duly verified reports giving such information and in such form as they shall prescribe.
Education Law section 216 authorizes the Board of Regents to incorporate educational institutions, including museums and other institutions for the promotion of science, literature, art, history or other department of knowledge, with such powers, privileges and duties, and subject to such limitations and restrictions, as they Regents may prescribe.
Education Law section 217 empowers the Board of Regents to grant a provisional charter to an institution, which shall be replaced by an absolute charter when the conditions for such absolute charter have been fully met.
Education Law section 233-aa enacts provisions governing the ownership and management of properties owned by or lent to museums, requires that the acquisition of property by a museum pursuant to section 233-aa must be consistent with the mission of the museum, and specifies that proceeds derived from the sale of any property title to which was acquired by a museum pursuant to section 233-aa shall be used only for the acquisition of property for the museum's collection or for the preservation, protection, and care of the collection and shall not be used to defray ongoing operating expenses of the museum.
2. LEGISLATIVE OBJECTIVES:
The proposed amendment carries out the intent of the statutes by clarifying criteria regarding the deaccessioning of items and materials in the collections of chartered museums or historical societies, consistent with generally accepted professional and ethical standards within the museum and historical society communities.
3. NEEDS AND BENEFITS:
The proposed amendment is necessary to implement Regents policy to protect the public's interest in collections held by chartered museums and historical societies.
Specifically, the proposed amendment clarifies restrictions on the deaccessioning of items and materials in an institution's collections, consistent with generally accepted professional and ethical standards within the museum and historical society communities. An institution may deaccession an item in its collection only in a manner consistent with its mission statement and collections management policy and where one or more of the following criteria have been met:
(1) the item is inconsistent with the mission of the institution as set forth in its mission statement;
(2) the item has failed to retain its identity;
(3) the item is redundant;
(4) the item's preservation and conservation needs are beyond the capacity of the institution to provide;
(5) the item is deaccessioned to accomplish refinement of collections;
(6) it has been established that the item is inauthentic;
(7) the institution is repatriating the item or returning the item to its rightful owner;
(8) the institution is returning the item to the donor, or the donor's heirs or assigns, to fulfill donor restrictions relating to the item which the institution is no longer able to meet;
(9) the item presents a hazard to people or other collection items; and/or
(10) the item has been lost or stolen and has not been recovered.
The proposed amendment would also require that proceeds from deaccessioning be restricted in a separate fund to be used only for the acquisition of collections or the preservation, conservation or direct care of collections.
In addition, the proposed amendment requires each institution to include in the annual report filed pursuant to section 3.27(e), a list of all items or item lots deaccessioned in the past year and all items or item lots disposed of in the past year.
4. COSTS:
(a) Costs to the State: None.
(b) Costs to local governments: None.
(c) Costs to private, regulated parties: None.
(d) Costs to regulating agency for implementation and continued administration of this rule: None.
The proposed amendment clarifies restrictions on when a chartered museum or historical society may deaccession an item or material in its collection and clarifies restrictions on the use of deaccession proceeds, and does not impose any costs on such institutions, the State, local governments or the State Education Department.
5. LOCAL GOVERNMENT MANDATES:
The proposed amendment applies to museums and historical societies with collections chartered by the Board of Regents, and does not impose any program, service, duty or responsibility upon any county, city, town, village, school district, fire district or other special district.
6. PAPERWORK:
The proposed amendment clarifies restrictions on when a chartered museum or historical society may deaccession an item or material in its collection and clarifies restrictions on the use of deaccession proceeds, and does not impose any additional paperwork requirements on such institutions.
7. DUPLICATION:
The proposed amendment duplicates no existing state or federal requirements.
8. ALTERNATIVES:
There are no significant alternatives to the proposed amendment and none were considered.
9. FEDERAL STANDARDS:
There are no applicable federal standards regarding the chartering and registration of museums and historical societies by the Board of Regents.
10. COMPLIANCE SCHEDULE:
The proposed amendment clarifies restrictions on when a chartered museum or historical society may deaccession an item or material in its collection and clarifies restrictions on the use of deaccession proceeds, consistent with generally accepted professional and ethical standards within the museum and historical society communities. It is anticipated that regulated parties can achieve compliance with the proposed amendment by its effective date.
Regulatory Flexibility Analysis
The proposed amendment applies to museums and historical societies authorized to hold collections chartered by the Board of Regents and does not impose any reporting, recordkeeping or other compliance requirements, and will not have an adverse financial impact, on small businesses or local governments. Because it is evident from the nature of the rules that it does not affect small businesses or local governments, no further measures were needed to ascertain that fact and none were taken. Accordingly, a regulatory flexibility analysis for small businesses and local governments is not required and one has not been prepared.
Rural Area Flexibility Analysis
1. TYPES AND ESTIMATED NUMBER OF RURAL AREAS:
The proposed amendment will apply to all of the 583 museums and 732 historical societies in New York State (source: New York State Museum chartering database as of December 2010), including those located in the 44 rural counties with less than 200,000 inhabitants and the 71 towns in urban counties with a population density of 150 persons per square mile or less.
2. REPORTING, RECORDKEEPING AND OTHER COMPLIANCE REQUIREMENTS AND PROFESSIONAL SERVICES:
The purpose of the proposed amendment is to protect the public's interest in collections held by chartered museums and historical societies.
Specifically, the proposed amendment clarifies restrictions on the deaccessioning of items and materials in an institution's collections, consistent with generally accepted professional and ethical standards within the museum and historical society communities. An institution may deaccession an item in its collection only in a manner consistent with its mission statement and collections management policy and where one or more of the following criteria have been met:
(1) the item is inconsistent with the mission of the institution as set forth in its mission statement;
(2) the item has failed to retain its identity;
(3) the item is redundant;
(4) the item's preservation and conservation needs are beyond the capacity of the institution to provide;
(5) the item is deaccessioned to accomplish refinement of collections;
(6) it has been established that the item is inauthentic;
(7) the institution is repatriating the item or returning the item to its rightful owner;
(8) the institution is returning the item to the donor, or the donor's heirs or assigns, to fulfill donor restrictions relating to the item which the institution is no longer able to meet;
(9) the item presents a hazard to people or other collection items; and/or
(10) the item has been lost or stolen and has not been recovered.
The proposed amendment would also require that proceeds from deaccessioning be restricted in a separate fund to be used only for the acquisition of collections or the preservation, conservation or direct care of collections.
In addition, the proposed amendment requires each institution to include in the annual report filed pursuant to section 3.27(e), a list of all items or item lots deaccessioned in the past year and all items or item lots disposed of in the past year.
The proposed amendment does not impose any additional professional services requirements.
3. COMPLIANCE COSTS:
The proposed amendment clarifies restrictions on when a chartered museum or historical society may deaccession an item or material in its collection and clarifies restrictions on the use of deaccession proceeds, and does not impose any costs on such institutions, the State, local governments or the State Education Department.
4. MINIMIZING ADVERSE IMPACT:
The proposed amendment is necessary to implement Regents policy to protect the public's interest in collections held by chartered museums and historical societies. The proposed amendment clarifies restrictions on when a chartered museum or historical society may deaccession an item or material in its collection and clarifies restrictions on the use of deaccession proceeds, consistent with generally accepted professional and ethical standards within the museum and historical society communities, and does not impose any additional compliance requirements or costs on such institutions. Since these requirements must have State-wide application in order to ensure uniform, consistent practices relating to museum and historical society collections management, it is not feasible to impose a lesser standard on, or otherwise exempt, institutions located in rural areas.
5. RURAL AREA PARTICIPATION:
The proposed amendment was developed in concert with the New York museum community. Representatives of the Museum Association of New York and leaders from museums across the state, including several from rural areas, were included in a Regents Ad Hoc Committee on deaccessioning. The recommendations of the Ad Hoc Committee were developed by SED staff into the proposed amendment. The components of the proposed amendment have been posted to list serves and published to provide opportunities for public comment.
Job Impact Statement
The proposed amendment applies to museums and historical societies with collections, chartered by the Board of Regents and will not have a substantial adverse impact on job or employment opportunities. Because it is evident from the nature of the proposed amendment that it will have no impact on jobs or employment opportunities, no further measures were needed to ascertain that fact and none were taken. Accordingly, a job impact statement is not required and one has not been prepared.
