Hi Kathy – I want to preface my comments below with the statement that I personally support the “general agreement” Initial Report preliminary recommendation for a “Standing IRT”. I do not support changing the name to anything other than “Post-launch IRT” since the term IRT is well-defined in GNSO Operating Procedures in a manner that is designed to guarantee oversight and transparency. It is also referenced in the Consensus Policy Implementation Framework which is integrated with existing GNSO Input and Guidance procedures designed to address issues arising both pre-launch and post-launch. (Significantly, public comment was obtained in relation to a “Standing IRT” and not in relation to any other entity so renaming the entity is not at all likely to “eliminate confusion”.) The issues you have raised below are EXACTLY the issues and concerns reviewed at length by the Policy and Implementation Working Group using “real life” examples from the 2012 round post launch. Thus, Annex L of the GNSO Policy& Implementation Working Group Final Report specifies the following IRT Principles and Guidelines: https://gnso.icann.org/sites/default/files/file/field-file-attach/2016-12/ir... Whether it is a “Pre-launch IRT” or a “Post-launch IRT”, and whether the issue that arises is characterized by some as “policy” and by others as “implementation”, the same principles of oversight and transparency should apply. IN THIS REGARD, PLEASE SEE V. E. OF THE IRT PRINCIPLES AND GUIDELINES which applies “In the event of disagreement between ICANN Staff and the IRT or any of its members on the implementation approach proposed by ICANN staff…” and goes on to define the role of the GNSO liaison in that event. In other words, a “Post-launch IRT” by any other name should still be a post-launch IRT as to which the same Principles and Guidelines apply. Otherwise, the community risks losing the GNSO Council oversight system which is currently baked into the Operating Procedures and the ByLaws. If I represent registry or registrar interests, I want a faster solution to my implementation issues and problems. That is understandable because time (delay) is money (poor cash flow and balance sheet). But again, one person’s “Implementation” is another person’s “Policy” and this is why the Sub Pro WG has to be very careful when addressing subjects like the Predictability Framework as well as some other recommendations coming later in relation to ICANN Org’s power/ability to resolve implementation issues post-launch. For anyone interested in a deeper understanding of how the existing GNSO Annexes apply to issues that arise during implementation, please see the IRT Principles and Guidelines above as well as the links to GNSO Input and GNSO Guidance below: GNSO Input Process Manual - https://gnso.icann.org/sites/default/files/file/field-file-attach/annex-3-in... GNSO Input Process (GIP) Introduction: A GIP is the process through which the GNSO provides input on matters that may not involve gTLD policy, for example in response to a request from the ICANN Board or in response to a public comment forum as further described in this GIP Manual. Any such requests should include as much information as possible. A GIP may be initiated by the GNSO Council at any time it considers appropriate, for example, when a request for GNSO input is received from the ICANN Board or other entity that does not involve the creation of new obligations for ICANN contracted parties and does not relate to a topic otherwise suitable for a GNSO Policy Development Process or GNSO Guidance Process, for example providing GNSO Input to a public comment forum. GNSO Guidance Manual - https://gnso.icann.org/sites/default/files/file/field-file-attach/annex-5-gg... GNSO Guidance Process Manual1.GGP Manual –Introduction: These guidelines and processes supplement the requirements for GGPs described in Annex D of the ICANN Bylaws [include link]. A GGP may be initiated by the GNSO Council when a request for input relating to gTLDs (either a new issue or in relation to previous policy recommendations) has been received from the ICANN Board or a gTLD issue has been identified by the GNSO Council that would benefit from GNSO Guidance, and it has determined that the intended outcome of the GGP is not expected to create new “Consensus Policy” recommendations including, but not limited to, any new contractual obligations for contracted parties (in which case a PDP would need to be initiated). However, the GGP may provide interpretation or assist in providing clarity with regards to the implementation of GNSO policy recommendations. The GGP should not be used as a tool to reopen a previously explored policy issue only because a constituency or stakeholder group was not satisfied with outcome of a previously held process on the same policy issue, unless the circumstances have changed and/or new information is available Anne From: Kathy Kleiman [mailto:kathy@kathykleiman.com] Sent: Tuesday, April 30, 2019 3:29 PM To: Aikman-Scalese, Anne <AAikman@lrrc.com>; Julie Hedlund <julie.hedlund@icann.org>; gnso-newgtld-wg@icann.org Cc: Jeff Neuman <jeff.neuman@comlaude.com> Subject: Re: Notes and Action Items - New gTLD Subsequent Procedures PDP WG - 30 April 2019 [EXTERNAL] ________________________________ Jeff, Anne and All In response to Jeff's question of last night, and also to Anne's email below, part of the problem here is that an IRT does not define its own policy issues. Pre-launch IRTs are expressly not allowed to do that and now, thanks to your work Anne, there are ways to enforce against overreach. But the Standing IRT or the Post-Launch IRT is being designed expressly to handle unforeseen issues from soup to nuts -- and that's a problem from a structural and procedural perspective. In Round 1, unanticipated issues dotted New gTLD landscape: a flood of GAC warnings, digital archery, voluntary commitments being thrown into contracts without review, and more. Many of these issues required policy decisions. As we discussed and confirmed last night, a standing IRT or a post-launch IRT can't make policy. This leaves open the larger question of what issues would fall under the IRT(s) and how the policy issues will be identified, analyzed, assessed and handled? Some more specific questions come to mind: 1) How do we create a Gateway -- a group which screens incoming issues for whether they are policy or not? We have to be very careful here. This group must include members of the GNSO Council, the group charged with oversight of the policy policy. 2) If the issues/newly raised questions are policy -- what do we do next? This group cannot be the Standing IRT. Who will it be and how will they work? Bundling is likely to play a role here, as is public comment, GNSO Council and Board oversight. 3) If the issues/newly raised questions are procedural - what do we do? Who makes these decisions? How to we ensure that those communities who are generally underrepresented in IRTs have the opportunity to provide input, concerns and oversight? As noted in the comments of the Registries, there may be applicants who have interested in these decisions who are not part of the multistakeholder process. So too, there will be registrant groups and other communities -- with direct interest in these decisions who are not part of the multistakeholder process. How do we reach them and bring in their issues, concerns and expertise? Best, Kathy On 4/30/2019 5:36 PM, Aikman-Scalese, Anne wrote: Regarding yesterday's call and the attempt to measure consensus on the recommendation for a “Standing IRT”, changing the name of that recommended body actually creates more confusion rather than less. The reasons are: Initial Report and Public Comment. The Initial Report recommended a "Standing IRT". There is a common understanding in the ICANN community about what an IRT does, how it is constituted, and what its powers are and are not. The documentation in GNSO procedures lays out the rules re IRT, including the composition of such a team which requires broad representation across the community. These understandings are codified in the GNSO Council Operating Procedures and in the Consensus Policy Implementation Framework. If the proposed body is renamed, this would require additional public comment which would include the need to specify how such a body would be constituted and what is powers would be. Effect on Existing GNSO Procedures and ICANN ByLaws. Once you apply a new name to this proposed new body designed specifically to address implementation issues post-launch, you have an animal that is not recognized in the Consensus Policy Implementation Framework nor in the GNSO Input, Guidance, and EPDP processes and is thus not incorporated into the language of those processes. Therefore, you will either have created a need for massive redrafting (including redrafting of the ICANN ByLaws) OR you will have removed that new body from the application of those processes. Jeff says there is no intention to change the applicability of the GNSO Input, Guidance, and EPDP process post-launch so it does not really make sense to name a new type of team that would require significant changes to existing procedures (and maybe even the ByLaws.) Thus, a "name change" for this body creates more questions than it answers. Prior Work of the Policy and Implementation WG. This has been a long-standing issue in Sub Pro since Leadership initially took the position that the GNSO Input, Guidance, and EPDP processes do not apply after launch. This is categorically not true. The Policy and Implementation Working Group examined numerous examples of issues that arose “post-launch” in the 2012 round. We ultimately concluded it is fruitless to try to characterize issues as either “policy” or “implementation” since one person’s policy is another’s implementation and vice versa. The mechanisms that were developed after the 2012 round to address these issues were specifically developed to apply WHENEVER the issue arise and to keep control of the issues at GNSO Council in a very transparent manner. It would be a massive change of policy to offer a new construct that either (1) causes the results of that PDP to have to be amended or (2) creates a new body that operates outside the established procedures already adopted by the Board and the GNSO. If everyone is anxious to simply clarify the time period in which the Team will operate, why not just call the teams the “Pre-launch IRT” and the “Post-launch IRT”. Much simpler and more predictable – and requires a lot less redrafting. Anne Anne E. Aikman-Scalese Of Counsel 520.629.4428 office 520.879.4725 fax AAikman@lrrc.com<mailto:AAikman@lrrc.com> _____________________________ [cid:image001.png@01D4FF6F.3023C3D0] Lewis Roca Rothgerber Christie LLP One South Church Avenue, Suite 700 Tucson, Arizona 85701-1611 lrrc.com<http://lrrc.com/> From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces@icann.org] On Behalf Of Julie Hedlund Sent: Tuesday, April 30, 2019 8:38 AM To: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: [Gnso-newgtld-wg] Notes and Action Items - New gTLD Subsequent Procedures PDP WG - 30 April 2019 [EXTERNAL] ________________________________ Dear Working Group members, Please see below the notes from the meeting today, 30 April 2019. These high-level notes are designed to help WG members navigate through the content of the call and are not a substitute for the recording, transcript, or the chat, which will be posted at: https://community.icann.org/display/NGSPP/2019-04-30+New+gTLD+Subsequent+Pro.... Please also see the referenced document at: https://docs.google.com/document/d/1R4zXTH3hIgfbqoxyqsSp19Bl6J96NNeV7oCgxsXK.... Kind regards, Julie Julie Hedlund, Policy Director Notes and Action Items: Action Items: -- Staff will check on the ICANN Board response to the GAC advice in the Helsinki Communique’ on new gTLDs. -- WG to come up with a different name for the “standing IRT”. Maybe “Post Application Advisory Team”. Notes: 1. Updates to Statements of Interest: No updates provided. 2. Review of Summary Documents – (see: https://docs.google.com/document/d/1R4zXTH3hIgfbqoxyqsSp19Bl6J96NNeV7oCgxsXK...) 2.2.1 Continuing Subsequent Procedures Policy Goals / What the WG is Seeking to Accomplish -- First bullet: replace “rounds” with “procedures”. 2.2.1.c.1: The Working Group recommends no changes to the existing policy calling for subsequent application rounds introduced in an ongoing, orderly, timely and predictable manner. -- Support from most commenters New Ideas/Concepts for Deliberations: -- GAC Advice and BC: Support for new rounds but no rounds started until reviews (CCT-RT) are complete. Need to do a cost-benefit analysis before starting new round. -- WG is taking into consideration the CCT-RT recommendations. Discussion: -- Policy does not have a demand component. -- Action Item: Board response to GAC Advice in the Helskinki Communique’. -- Note that the CCT-RT did have an economic study done by the Analysis Group, although perhaps not a full cost-benefit analysis. -- Concerns with maintaining the current policy unless there are objections. -- Unless there is a consensus on changing precedent we should stay on the same path. -- Can build on what we have learned, but hard to do analysis on what people might want. -- If the WG wants to request for an assessment to be done that will have to be approved by the Council. -- Calling for rounds introduced in an ongoing orderly timely and predictable manner support came from pretty much every group that responded in public comments to the Initial Report. -- We have some qualifications from the GAC. 2.2.1.e.1: The 2007 Final Report noted that success metrics would be developed around the New gTLD Program. What are some specific metrics that the program should be measured against? -- Support from most commenters. New Ideas/Concepts for Deliberations: ALAC, BRG, BC, RySG – New Ideas Discussion: -- Good proposals for different types of metrics. -- Need to define what we mean by success; CCT-RT referred that issue to the SubPro WG. -- Questions and issues in the CCT-RT could put some of these issues to rest. -- This WG could come up with a half dozen categories (elements of the program) and develop definitions of success for those – or develop targets, which is a less loaded word. -- Good conversation to continue on email. -- You could have a high-level structure from the 2012 round (to foster diversity, encourage competition, and enhance the utility of the DNS), then create specific targets within that structure within that framework. 2.2.2 Predictability -- Support from most commenters -- BC/RySG/IPC/ALAC (in response to e.1): New Idea - The Standing IRT must be representative of the community, but must also allow for the appointment of experts where needed. New Ideas/Concepts for Deliberations -- ICANN Org: Concerns/New Ideas Discussion: -- Can things in the model be improved so that you can support it? If not, what takes its place? -- Don’t think it’s in our authority to replace the GNSO policy process. -- We're not changing any of the policies or processes that have been established. -- Changes to policies after the launch need to go through the GNSO policy process; the predictability framework is for issues that come up outside of that process and guidance to the standing IRT. In the report we called it a standing IRT, but that seems to be confusing so we should change the name. Could call it a “gateway” to decide what is policy and what is not, and only looking at non-policy issues. -- Need to be more conscious of the need for predictability for third party interests. We use the term “affected parties” for that reason. -- WG needs to come up with a different name for the “standing IRT”. 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