(Posted by Peter Hirtle)
The New York State Board of Regents met this week to discuss making permanent its proposed regulations on deaccessioning from museums and historical societies, and it punted.
As I wrote earlier, the Board had issued draft permanent regulations for public comment. The permanent regulations were to replace a series of emergency regulations that it has issued since December, 2008. After the required 30 day comment period, the Board was to vote at its 19 October meeting on making the amendment to existing regulations permanent.
Instead the Board of Regents voted another temporary emergency regulation and directed the Education Department to start another 30 day comment period on the proposed permanent amendment. No timetable for future action is provided, but the new emergency regulations, which go into effect on 14 November, only last for 60 days. That means that the Board will have to act at its 11-12 January meeting, so we can expect a new proposal by the beginning of December at the latest.
Why the delay in adopting permanent regulations? There is no explanation in the new emergency regulations that were passed, but hints. There may have been some confusion over dates. The regulations were published in the NY State Register on 26 August, but the memo to the Board states that they were published on the 29th. If this were true (which it is not), then the required 30 day public comment period would not have been met.
I suspect, however, that it is more likely that the Department of Education just didn’t have the time to assess the public comments received on the proposed regulations. The “Statement of Facts and Circumstances which Necessitate Emergency Action” indicates that about 30 public comments were received on the December 2008 emergency regulation, but it does not report how many comments were received this time. Nor are the public comments posted on the Department’s web site. The statement does report, however, that “Further revisions to the proposed rule are anticipated in response to review and recommendation by Department staff,” which suggests that they may have received some comments that may modify their thinking.
In the interim, as “Culture Grrl” Lee Rosenbaum noted, the emergency regulation differs from the proposed permanent regulation. It appears that the Board simply passed the same emergency regulation it adopted in July, 2009. Rosenbaum finds this problematic since the emergency regulations give four reasons when a historical society or museum can deaccession an item, whereas the proposed permanent regulations provided ten. In my comments to the Board, I noted two other justifications for deaccessioning – one from the University of Wyoming, and one passed on an experience at Cornell University - and that was without really thinking that hard about it.
The issue highlights for me the futility of the entire regulatory process. As soon as you try to limit what can be done, a new, justifiable option will occur. No regulations can have the flexibility of best professional practices. Even the current strictures that govern the use of the proceeds from a deaccessioning sale are under legal and ethical scrutiny. The Board of Regents and Education Department should stop trying to micromanage cultural institutions in the state and instead simply require that the governing boards of those institutions operate according to best professional practice and with the mission of the institution in mind.
(h/t to Donn Zaretsky for directing me to Lee Rosenbaum’s posting)