PKR-47-13-00014-A Disposition of Works of Art and Historic Objects in OPRHP Custody

6/4/14 N.Y. St. Reg. PKR-47-13-00014-A

NEW YORK STATE REGISTER

VOLUME XXXVI, ISSUE 22

June 04, 2014

RULE MAKING ACTIVITIES

OFFICE OF PARKS, RECREATION AND HISTORIC PRESERVATION

NOTICE OF ADOPTION

 

I.D No. PKR-47-13-00014-A

Filing No. 423

Filing Date. May. 20, 2014

Effective Date. Jun. 04, 2014

Disposition of Works of Art and Historic Objects in OPRHP Custody

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:

Action taken:

Repeal of Part 429; and addition of new Part 429 to Title 9 NYCRR.

Statutory authority:

Parks, Recreation and Historic Preservation Law, sections 3.09(8), art. 19-A, 19.13(9) and 19.29

Subject:

Disposition of works of art and historic objects in OPRHP custody.

Purpose:

To update OPRHP's rule on disposition of works of art and historic objects.

Text of final rule:

9 NYCRR Part 429 is repealed and a new Part 429 is adopted as follows:

PART 429. DISPOSITION OF WORKS OF ART OR HISTORIC OBJECTS

Section 429.1. Purpose.

The Office of Parks, Recreation and Historic Preservation (office) may dispose of a work of art or historic object that has been acquired by the State and is surplus to the needs of the office in accordance with the terms and conditions set forth in this Part.

Section 429.2. Determination of need.

Prior to the disposition of a work of art or historic object the commissioner shall determine based upon the recommendation of the office’s division for historic preservation that it is surplus and fits one or more of the following criteria:

(a) The work of art or historic object is not relevant to the purposes, functions or interpretive goals and policies of the office;

(b) The work of art or historic object is one of several examples of a particular type or class of art or historic object in the custody of the office, and these other examples adequately fulfill the interpretive goals and policies of the office; or

(c) The work of art or historic object has deteriorated beyond usefulness or has become wholly or partially comprised of material that may be hazardous to the health or safety of staff or damaging to another work of art or historic object.

Section 429.3. Manner of disposition.

(a) Deteriorated or hazardous conditions. A work of art or historic object that has been determined to be surplus in accordance with the provisions of subdivision c of section 429.2 of this Part may be destroyed and disposed of in an environmentally-responsible manner subject to industry standards under a process known as witnessed destruction.

(b) A work of art or historic object that has been determined to be surplus in accordance with the provisions of subdivisions a or b of section 429.2 of this Part may be disposed of in the following manner, after being properly documented in accordance with the office’s collections guidelines:

(1) it shall first be offered to the New York State Museum and if the State Museum fails to accept this offer within 30 days, it shall be offered to State agencies allowed to acquire, exhibit, preserve or interpret it; and if no State agency accepts this offer within 30 days it may be:

(i) donated to a public corporation;

(ii) donated to a not-for-profit corporation authorized to acquire, exhibit, preserve or interpret it;

(iii) sold for fair market value;

(iv) sold for less than fair market value provided the office makes a written justification on a case-by-case basis that it would be in the best interests of the State; or

(v) transferred to the Office of General Services with or without conditions for disposition either by public sale as provided in section 167 of State Finance Law or by private sale.

Section 429.4. Terms and conditions.

The commissioner may impose such terms or conditions upon the disposition of a work of art or historic object as the commissioner deems appropriate to encourage its conservation and preservation for the public benefit.

Section 429.5. Restrictions on disposition.

(a) A work of art or historic object shall not be disposed of under this Part within 10 years of its acquisition by the State.

(b) A work of art or historic object that is undocumented may be disposed of under this Part between 10 and 20 years after acquisition by the State provided the disposition is first approved by a court of competent jurisdiction. The office shall attempt to notify the previous owner or heirs or legal representatives, however, this requirement shall be deemed waived if the office is unsuccessful after making reasonable efforts to locate and notify such persons.

(c) A work of art or historic object that is undocumented may be disposed of under this Part without court approval 20 years or more after its acquisition by the State.

(d) If disposal of a documented work of art or historic object is inconsistent with the terms or conditions of the instrument by which title was conveyed to the State, it may, nevertheless, be disposed of under this Part provided the disposition is first approved by a court of competent jurisdiction. The office shall attempt to notify the previous owner or heirs or legal representatives, however, this requirement shall be deemed waived if the office is unsuccessful after making reasonable efforts to locate and notify such persons.

(e) A work of art or historic object determined to be surplus under subdivision c of section 429.2 may be disposed of under this Part at any time after its acquisition without court approval.

Section 429.6. Proceeds from Disposition.

Proceeds derived from the disposition of any property from the collections of the office shall be deposited into the state park infrastructure fund established pursuant to section ninety-seven-mm of the state finance law and shall be used only for the acquisition of collections or for the preservation, protection and care of the collections or both, including related capital projects.

Section 429.7. Definitions.

(a) “Deteriorated beyond usefulness” means the work of art or historic object lacks significance and is in poor physical condition or has suffered a substantial loss of integrity and has no intrinsic historic, artistic, scientific or cultural value.

(b) “Disposal” means the removal of works of art or historic objects from the office through transfer, gift or sale; or the witnessed destruction of works of art or historic objects that have deteriorated beyond usefulness or are hazardous.

(c) “Surplus” means does not support a mission of the office and does not provide any current or future public benefit.

(d) “Witnessed destruction” means two qualified staff persons from the office’s division for historic preservation:

(1) document the work of art or historic object;

(2) make the appropriate finding or findings under subdivision (c) of section 429.2;

(3) determine the work of art or historic object cannot be reconstituted or does not merit extraordinary remediation or conservation efforts;

(4) witness the destruction and disposal or the transfer for disposal; and

(5) make and keep on file sworn and notarized affidavits outlining the findings, determination and process.

Final rule as compared with last published rule:

Nonsubstantive changes were made in sections 429.1, 429.2, 429.3, 429.5(f) and 429.7.

Text of rule and any required statements and analyses may be obtained from:

Kathleen L. Martens, Associate Attorney, OPRHP, Albany, NY 12238 (USPS), 625 Broadway, Albany, NY 12207 (Courier), [phone], email: [e-mail]

Revised Regulatory Impact Statement

This Regulatory Impact Statement (RIS) describes the Office of Parks, Recreation and Historic Preservation’s (Office or Agency) proposed rule on the disposition of works of art or historic objects that do not meet the needs of the Office’s collections. In the context of this rule “disposition” or “disposal” involves the removal of works of art or historic objects from the Office’s collections through transfer to another agency, gift or sale; or the witnessed destruction of deteriorated or hazardous items under longstanding controls.

Statutory authority: Parks, Recreation and Historic Preservation Law (PRHPL or Parks Law), Sections 3.09(8), Article 19-A generally and Sections 19.13, 19.29 authorize OPRHP to adopt regulations necessary to carry out the functions of the Office and provide for the disposition of works of art or historic objects in the Office’s collections.

Legislative objectives: Updating this rule confirms the Office’s authority to dispose of surplus items in its collections that:

• after twenty years are no longer relevant to interpretation goals and policies of the Agency or duplicate other items in its collections;

• have deteriorated beyond usefulness; or

• pose a health hazard to employees.

The rule streamlines the notification process so that appropriate state agencies have the opportunity to take possession of the items slated for disposition. It also updates regulatory disposition criteria to conform to statutory changes in PRHPL § 19.29, and reduces the Agency’s substantial costs from continuing to care for or house items that do not meet the needs of its collections.

Needs and benefits: OPRHP preserves, manages and develops its historic collections to educate New Yorkers about the State’s historic resources through a system of state historic sites and historic parks. The Agency has an extensive collections protocol for managing works of art and historic objects. This protocol is derived from the Parks Law, the existing regulation and museum guidelines. Works of art or historic objects held by OPRHP for more than twenty years that have no relevance to its collections and interpretation policies or duplicate other items, or those that have deteriorated beyond reasonable usefulness or are hazardous may be disposed of without court order under PRHPL § 19.29.

The controlling statute recognizes a widely accepted management practice shared by all institutions that maintain and use historic collections. Updating disposition protocols will allow OPRHP to focus its limited resources on existing collections that are significant to its mission.

The existing rule at 9 NYCRR Part 429 that is being updated worked effectively for objects that were acquired with instruments of title, however, it failed to address the large number of undocumented items that were found in collection and came under OPRHP’s jurisdiction. Prior to 1977 OPRHP accessioned and held undocumented items. And, unlike museums, it accepted and recorded them as collection objects. Information about the items was numbered and added to an inventory. Some of these older items have also been damaged beyond repair or pose a health hazard for employees. The rule formalizes the Office’s collections protocol for disposing items where continued retention is unnecessary, involves labor intensive conservation treatment or expensive warehousing costs.

Initial staff requests for disposal of surplus items to be transferred or donated or sold are submitted to its collections committee. Sufficient justification explaining why the object is either not historically significant to the Office or why it cannot be reasonably used for exhibit or interpretation must be established. The collections committee must approve the disposal by a majority vote at two meetings. The Director of the Bureau of Historic Sites within the Division for Historic Preservation then submits the requests for disposal to OPRHP Executive Staff for approval.

Since January 1977 the Office has not accepted undocumented items. The items intended to be transferred, donated or sold under the rule have been managed for more than twenty years. Previous owners and the means by which these items came into the Office’s custody are mostly unknown to OPRHP staff. The proposed rule acknowledges that through its long term care and custody the Office established jurisdiction over these items, and that after twenty years it may appropriately dispose of them.

There is a remote risk that an owner of an undocumented item that has been in the State’s possession for twenty years or more could attempt to claim ownership after an item has been disposed of without court approval. That claim, however, would be subject to a rebuttable presumption that the Office had valid title because the item was not originally loaned to the State, the item had been accepted, numbered and recorded as a part of the Office’s inventory and the State enjoyed undisturbed custody for at least twenty years. (See, Maire C. Malaro, A Legal Primer on Managing Museum Collections, 391 (3rd. ed. 2012)). The Office retains the discretion to provide notice of the disposal of any of these items to the public in the State Register on a case-by-case basis.

Under the rule, undocumented works of art or historic objects may not be disposed of within ten years of acquisition, and may not be disposed of between ten to twenty years of acquisition without court approval.

Finally, the rule’s provisions for witnessed destruction of items that have deteriorated beyond usefulness or are hazardous or unsafe, confirm the Office’s existing collections committee practice.

Cost-benefit analysis: The continued retention of items eligible for disposal under PRHPL § 19.29 has significant costs for the State. The items require secure and adequate storage space with proper temperature and light controls and access for staff. And, retention of these items also generally requires the Office to undertake reasonable conservation efforts.

Local government mandates: The proposed rule does not affect local governments.

Paperwork: The rule will require staff to prepare, document and file paperwork to comply with the disposition procedure.

Duplication: None.

Alternatives: There are no viable alternatives to updating this rule to conform to the existing proper and reasonable collections management policy authorized by the Parks Law.

Federal standards: None.

Compliance schedule: The rule will take effect on the date the Notice of Adoption is published in the State register.

Revised Regulatory Flexibility Analysis

The proposed rule at 9 NYCRR Part 429 updates the Office of Parks, Recreation and Historic Preservation’s (OPRHP) process for disposition of works of art or historic objects. It involves OPRHP’s collection management practices and, therefore, will not affect small businesses or local governments or recordkeeping requirements.

Revised Rural Area Flexibility Analysis

The proposed rule at 9 NYCRR Part 429 updates the Office of Parks, Recreation and Historic Preservation’s (OPRHP) process for disposition of works of art or historic objects. It involves OPRHP’s collection management practices and, therefore, will not affect small businesses or local governments or recordkeeping requirements in rural areas.

Revised Job Impact Statement

The proposed rule at 9 NYCRR 429 on disposition of works of art or historic objects involves the Office of Parks Recreation and Historic Preservation’s collections management policies and would not affect jobs or employment opportunities.

Initial Review of Rule

As a rule that requires a RFA, RAFA or JIS, this rule will be initially reviewed in the calendar year 2017, which is no later than the 3rd year after the year in which this rule is being adopted.

Assessment of Public Comment

The Office of Parks, Recreation and Historic Preservation (“OPRHP” or “Office”) received one comment from the public on its proposed rule to adopt 9 NYCRR Part 429 which addresses the disposition of works of art and historic objects in the Office’s collections. The comment supported the process established by the rule but asked the Office to clarify the terms to avoid confusion between the types of accessioning/deaccessioning procedures that museums and historical societies use that differ somewhat from OPRHP’s state agency procedures outlined generally at Parks, Recreation and Historic Preservation Law, Article 19-A, and, in particular, § § 19.13(9) and 19.29. OPRHP accommodated the comment and removed the term “deaccession” from the rule and replaced it with the term “disposition.”

Additionally, the comment requested OPRHP clarify the rule further by adding definitions for the following terms: deteriorated beyond usefulness, disposal, surplus and witnessed destruction. Finally, the comment indicated additional changes were required to the Regulatory Impact Statement (RIS) to include information about how the undocumented items in OPRHP’s collections were inventoried and added to the Office’s collections (i.e., found in collection). The Office discontinued the practice of acquiring undocumented items in January 1977 when it established its collections committee in the Division for Historic Preservation. The comment also highlighted the need for other non-substantive and technical clarifying changes to the Text and the RIS.