To clarify restrictions on the deaccessioning of items and materials in collections held by museums and historical societies.
Text or summary was published
in the March 2, 2011 issue of the Register, I.D. No. EDU-09-11-00006-P.
Final rule as compared with last published rule:
No changes.
Text of 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
Assessment of Public Comment
Since publication of a Notice of Proposed Rule Making in the State Register on March 2, 2011, the State Education Department received the following comments:
1. COMMENT:
Two comments were received in support of the proposed amendment, noting the rule was consistent with the standards of the museum field, including the practices recommended by the American Association of Museums and the American Association for State and Local History, and that the ad hoc deaccessioning committee, appointed by the Board of Regents to develop the proposed rule, has done a very good job of balancing collection stewardship with fiscal reality.
DEPARTMENT RESPONSE:
No response is necessary as the comments are supportive in nature.
2. COMMENT:
One comment was supportive of the proposed amendment, but also requested that future consideration be given to how the provision in section 3.27(c)(6)(vi), requiring institutions to ensure that collections shall not be capitalized, relates to Financial Accounting Standards Board (FASB) guideline 116, which indicates that if museums are to refrain from capitalizing their collections, proceeds may be used only for acquisitions and not for direct care, conservation or other similar activities. In order to use deaccession proceeds for anything other than acquisition, the collections must be capitalized. Only museums that comply with FASB 116 are given accreditation status by the American Association of Museums.
DEPARTMENT RESPONSE:
Accreditation by the American Association of Museums (AAM) is optional and not required by New York law or regulation. AAM is a private not-for-profit corporation that asserts its museum accreditation holds institutions to a higher standard of performance and operation. Therefore, New York museums seeking to acquire or retain such accreditation must weigh the value of using proceeds from deaccessioning for the sole purpose of acquisition against the value of using proceeds for the conservation and direct care of collections, in addition to acquisitions.
3. COMMENT:
(i) No provision is made for relevant good governance issues, such as who in the museum or historical society has authority to authorize or approve deaccession.
(ii) No provision is made for any advance notice to museum or historical society members or to the public of the proposed deacquisition of, at the least, historically significant or particularly valuable items.
(iii) No provision is made for notice to donors or their representatives of proposed deaccessions, except for restricted gifts.
(iv) No provision is made for how the deaccession is to be effected, for example notice to other institutions that may have an interest in the items, auction, private sale whether or not after competitive bids.
(v) Section 3.27(c)(7)(x), which permits deaccessioning where the item has been lost or stolen, does not deal with due diligence search efforts, for example filing police reports, filing reports of the low or theft with Art Loss Register and similar organizations.
DEPARTMENT RESPONSE:
The comments are beyond the scope of this proposed rule making. The proposed rule is intended to establish general criteria for deaccessioning and not to address the specific procedures that must be followed in every instance.
The rule was developed based on the recommendations of the Regents Ad Hoc Advisory Committee on Deaccessioning, which included representatives from across the museum community. The charge of the Ad Hoc Advisory Committee was to develop general criteria for museum deaccessioning that all sectors of the museum community could agree upon. The Ad Hoc Advisory Committee discussed how prescriptive the proposed rule should be and concluded that the rule should set a general standard applicable to all museums and that specific decisions should be left to local museums, so that differences between the various types of museums operating across the State can be accommodated and decisions can be made by local museum professionals, who are in the best position to make such decisions. There was also concern that an overly prescriptive regulation would impose unnecessary burdens and costs on institutions that are already facing challenges in the current economic climate.
It was recognized that not all issues could be addressed in the proposed rule and consideration is being given to establishing a more permanent advisory group to consider museum issues, including refinements of the deaccessioning regulation, and to ensure that all sectors of the museum community have input into the development of regulations addressing such issues. Issues relating to good governance and the authority to approve deaccessioning are largely driven by statute and would require a broader policy discussion by such an advisory group. Proposals such as requiring notice of each deaccessioning to members and the public, prescribing notice to donors, prescribing due diligence standards for searches of lost collection items and requiring notice of each deaccessioning to other institutions would impose burdens on museums and their impact needs to be fully assessed. A careful balance needs to be struck between protecting the public interest in preserving and protecting collections and imposing paperwork and other burdens on museums that could affect their ability to function. Accordingly, the issues raised in the above comments may be referred to a successor advisory group for further consideration.
4. COMMENT:
No provision is made for the deaccession of collection items that were given for the purpose of being sold, sooner or later, for the benefit of the donee. Shouldn't the proceeds from such sales be available for general purposes, unless restricted by the donors?
DEPARTMENT RESPONSE:
The Department maintains that items donated to a museum specifically to be sold for the purpose of raising funds for general purposes are donor-restricted gifts, and should not be accessioned into the collection. The proceeds from such sales may be used for general purposes unless restricted by the donor. Clarification of any such issues would be more appropriately addressed in guidance.
5. COMMENT:
No provision is made for earnings on the restricted fund referred to in section 3.27(c)(6)(vii) or for its earnings to be dedicated to the restricted purpose. Nor does the rule provide for filing of any insurance claims or the deposit of any insurance proceeds in the separate fund.
DEPARTMENT RESPONSE:
The comments are beyond the scope of this rulemaking since the proposed rule does not address any aspect of the management of the separate fund in section 3.27(c)(6)(vii). The Department believes that these issues are appropriate for guidance, at least in the first instance, and that if a regulatory mandate is needed, it should be developed through a representative museum advisory group. Consideration is being given to establishing a permanent museum advisory group and these issues may be referred to such advisory group for further consideration.
6. COMMENT:
The distinction in section 3.27(e) between items or lots deaccessioned and disposed of is unclear.
DEPARTMENT RESPONSE:
The distinction between items and lots of items came from representatives of natural history museums, who accession similar specimens in lots (such as butterflies of a certain species), and who sought clarification that they can list in their annual report the lots deaccessioned rather than individually list the potentially hundreds of items included in the lots. Individual listing would be extremely costly and burdensome to such museums and is not necessary to carry out the purpose in requiring transparency in deaccessioning.
