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.

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.

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.

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.

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.

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.