Dear Anne, Please take a look at section 1.2.2.e, where the draft Predictability Framework can be found, and then specifically, “Fundamental, Possibly Policy-level Changes.” As you noted, the Predictability Framework, is in part, intended to help the Standing IRT determine how to triage issues that arise after program launch (i.e., applications are being accepted). In the event that there are policy implications for the new issue, the Standing IRT could recommend to the GNSO Council that one of the GNSO processes referenced below be initiated. The Standing IRT does not have the power to initiate the processes themselves. This language is currently contained in the draft Initial Report excerpt, in circumstances where the Standing IRT determines that the issue represents new policy: The standing IRT will make a determination that additional consideration is needed. For instance, a request could be sent to the GNSO Council to consider invoking the GNSO Input Process (GIP), GNSO Guidance Process (GGP), or the GNSO Expedited PDP Process (EPDP). Also, as you mentioned, the new GNSO processes can be initiated during the implementation of the policy (i.e., when the IRT is utilizing the CPIF) and/or after the next wave of applications is being accepted. The Predictability Framework does not seek to change any of that. Hopefully this is helpful. I see your subsequent email that just arrived and hopefully this helps to respond to that email as well. Best, Steve From: "Aikman-Scalese, Anne" <AAikman@lrrc.com> Date: Wednesday, April 18, 2018 at 8:19 AM To: 'Jeff Neuman' <jeff.neuman@comlaude.com>, Steve Chan <steve.chan@icann.org>, "'gnso-newgtld-wg@icann.org'" <gnso-newgtld-wg@icann.org> Subject: [Ext] RE: Predictability - Section 1.2.2 Hi Jeff - attempting to be more concrete – it seems that in Item g. of the Overarching Issues section of the Predictability Framework (which currently says there are no other dependencies within ICANN) this needs to be revised to say: Commenters are referred to the existing GNSO Operating Procedures designed to address issues arising and changes needed after the policy development phase as detailed at the links below. The Working Group is seeking feedback on how the proposed Predictability Framework would be integrated with these GNSO processes: The above should include the live links to these GNSO Operating Procedures Annexes. Thank you, Anne Anne E. Aikman-Scalese Of Counsel 520.629.4428 office 520.879.4725 fax AAikman@lrrc.com _____________________________ Lewis Roca Rothgerber Christie LLP One South Church Avenue, Suite 2000 Tucson, Arizona 85701-1611 lrrc.com[lrrc.com] From: Aikman-Scalese, Anne Sent: Tuesday, April 17, 2018 3:42 PM To: 'Jeff Neuman'; 'Steve Chan'; 'gnso-newgtld-wg@icann.org' Subject: RE: Predictability - Section 1.2.2 I am in favor of standing IRT. If you are saying the Predictability Framework is used by Standing IRT to help it determine what process to recommend to GNSO, then I get it. That is not what the current draft says. You had said that the processes I am describing end at launch. They definitely do not end at launch. They are available anytime the GNSO or the Board wants to use them. Again, what is not clear is the interaction between the proposed Predictability Framework and those processes and certainly GNSO has the final say as to which matter arising either before or after launch fits in which box. Anne E. Aikman-Scalese Of Counsel 520.629.4428 office 520.879.4725 fax AAikman@lrrc.com _____________________________ Lewis Roca Rothgerber Christie LLP One South Church Avenue, Suite 2000 Tucson, Arizona 85701-1611 lrrc.com[lrrc.com] From: Jeff Neuman [mailto:jeff.neuman@comlaude.com] Sent: Tuesday, April 17, 2018 3:37 PM To: Aikman-Scalese, Anne; 'Steve Chan'; 'gnso-newgtld-wg@icann.org' Subject: RE: Predictability - Section 1.2.2 To be honest, I am trying to understand what the confusion is. What you sent below are the thresholds for the GNSO Council when they elect to use the Expedited PDP or the Guidance Process. What we are talking about here is setting up a standing IRT after the Applicant Guidebook is issued and the new gTLD Program has again launched. If an issue arises, it will be brought to the attention of this standing IRT. Using the guidance in the CPIF as well as in the Predictability Framework they will make a recommendation as to whether this is (a) an issue that should go through the GNSO, (b) should be an issue worked out between Applicants and ICANN Org, (c) should be worked out by ICANN Org alone, or (d) follow some other process. If this standing IRT recommends option (a), then the GNSO will decide whether it should be a full pdp, expedited pdp, GGP or something else. It would help if others weigh in. Thanks. Jeffrey J. Neuman Senior Vice President |Valideus USA | Com Laude USA 1751 Pinnacle Drive, Suite 600 Mclean, VA 22102, United States E: jeff.neuman@valideus.com or jeff.neuman@comlaude.com T: +1.703.635.7514 M: +1.202.549.5079 @Jintlaw From: Aikman-Scalese, Anne <AAikman@lrrc.com> Sent: Tuesday, April 17, 2018 6:27 PM To: Jeff Neuman <jeff.neuman@comlaude.com>; 'Steve Chan' <steve.chan@icann.org>; 'gnso-newgtld-wg@icann.org' <gnso-newgtld-wg@icann.org> Subject: RE: Predictability - Section 1.2.2 Jeff, there is definitely some confusion going on here. The processes I am describing are in fact baked into the ByLaws and there are specific voting thresholds etc. They do not appear at all at the CPIF link you sent to me but they are real. Here is a summary of the Board resolution ICANN Board Resolution Text: Adopted on: 28 September 2015 Summary: Resolved (2015.09.28.16), the Board approves the amendments to the ICANN Bylaws Article X, section 3-9 as posted for public comment addressing the new GNSO voting thresholds resulting from the GNSO Guidance Process (GGP) and GNSO Expedited Policy Development Process (EPDP). Resolved (2105.09.28.17), the Board approves the amendments to ICANN Bylaws Annex A as posted for public comment (see https://www.icann.org/en/system/files/files/bylaws-proposed-amendments-gnso-policy-implementation-31jul15-en.pdf[icann.org] [PDF, 656 KB]), creating a new Annex A-1 that outlines the GNSO EPDP. Resolved (2015.09.28.18), the Board approves the amendments to ICANN Bylaws Annex A as posted for public comment (see https://www.icann.org/en/system/files/files/bylaws-proposed-amendments-gnso-policy-implementation-31jul15-en.pdf[icann.org] [PDF, 656 KB]), creating a new Annex A-2 that outlines the GNSO GGP. (See https://www.icann.org/resources/board-material/resolutions-2015-09-28-en#2.f[icann.org] for further details) Anne E. Aikman-Scalese Of Counsel 520.629.4428 office 520.879.4725 fax AAikman@lrrc.com _____________________________ Lewis Roca Rothgerber Christie LLP One South Church Avenue, Suite 2000 Tucson, Arizona 85701-1611 lrrc.com[lrrc.com] From: Jeff Neuman [mailto:jeff.neuman@comlaude.com] Sent: Tuesday, April 17, 2018 12:24 PM To: Aikman-Scalese, Anne; 'Steve Chan'; 'gnso-newgtld-wg@icann.org' Subject: RE: Predictability - Section 1.2.2 Anne, I think your recollection of the CPIF and what it actually states are not necessarily aligned the way I read it. Look at page 3 in following Document (https://www.icann.org/en/system/files/files/gdd-consensus-policy-implementation-framework-31may15-en.pdf[icann.org]). Under Section IV, in the chart and the text below, there IS a definitive End Date for the IRT in the “Analyze and Design” stage. In fact, in the chart it says in red “The IRT concludes work”. After that there is the actual implementation phase followed by the “Policy Effective Date GDD to Compliance Handoff”. The “Predictability Framework” we are proposing starts at the point in which that diagram states “IRT CONCLUDES WORK.” It is quite possible (as happened during the 2012 round) that additional issues will arise after the original IRT concludes its work and even after the “Policy Effective Date”. It is for those issues (which could be operational) that we are talking about. In the last round, that would have included things like (1). Changing the contract AFTER Guidebook Release, (2) Changing from Digital Archery to Priority Draw (again After the release of the Guidebook), (3) Changing of PDT Testing Requirements (yet again after the Guidebook was released), etc…… I hope that looking at the chart and the explanations below the chart at https://www.icann.org/en/system/files/files/gdd-consensus-policy-implementation-framework-31may15-en.pdf[icann.org] makes it a little clearer. Perhaps we can add a chart to our report as well. Thanks. Jeffrey J. Neuman Senior Vice President |Valideus USA | Com Laude USA 1751 Pinnacle Drive, Suite 600 Mclean, VA 22102, United States E: jeff.neuman@valideus.com or jeff.neuman@comlaude.com T: +1.703.635.7514 M: +1.202.549.5079 @Jintlaw From: Aikman-Scalese, Anne <AAikman@lrrc.com> Sent: Tuesday, April 17, 2018 2:59 PM To: Jeff Neuman <jeff.neuman@comlaude.com>; 'Steve Chan' <steve.chan@icann.org>; 'gnso-newgtld-wg@icann.org' <gnso-newgtld-wg@icann.org> Subject: RE: Predictability - Section 1.2.2 Sorry – I meant by GNSO Council at its April 26 meeting. Anne E. Aikman-Scalese Of Counsel 520.629.4428 office 520.879.4725 fax AAikman@lrrc.com _____________________________ Lewis Roca Rothgerber Christie LLP One South Church Avenue, Suite 2000 Tucson, Arizona 85701-1611 lrrc.com[lrrc.com] From: Aikman-Scalese, Anne Sent: Tuesday, April 17, 2018 11:46 AM To: 'Jeff Neuman'; 'Steve Chan'; 'gnso-newgtld-wg@icann.org' Subject: RE: Predictability - Section 1.2.2 Just to emphasize this “post launch aspect” of the existing tools, the Board and the GNSO are seriously considering the use of an Expedited PDP to address GDPR issues and accreditation. The Expedited PDP procedure is anticipated to take 360 days. This will be discussed by the Board in more detail at its April 26 meeting. Anne E. Aikman-Scalese Of Counsel 520.629.4428 office 520.879.4725 fax AAikman@lrrc.com _____________________________ Lewis Roca Rothgerber Christie LLP One South Church Avenue, Suite 2000 Tucson, Arizona 85701-1611 lrrc.com[lrrc.com] From: Aikman-Scalese, Anne Sent: Tuesday, April 17, 2018 10:47 AM To: 'Jeff Neuman'; 'Steve Chan'; gnso-newgtld-wg@icann.org Subject: RE: Predictability - Section 1.2.2 Thanks Jeff. Mostly agree with the tweaks but I honestly still do not understand the notion that “implementation phase ends when the program is launched”. That was not at all what was discussed in the Policy and Implementation Working Group. In fact, there are provisions that call for reconvening of IRT. So the main question I am trying to address in order to avoid a conflict between the GNSO Input, Guidance, and Expedited PDP processes is: When does this Predictability Framework kick in? In fact, the case studies done by P &I WG were virtually all post-launch of the 2012 program if “launch” is tied to receiving applications. The intent of GNSO Input, Guidance, and Expedited PDP framework was that it exists well beyond launch. That is why I have always been confused by this discussion and the lack of correlation between the two remedies. So I call Predictability Framework a fourth mechanism because you call policy number 1, implementation number 2 and Predictability Framework number 3. The policy and implementation Working Group determined through its case studies that when issues arise during implementation (including after launch, e.g. name collisions and RPM issues), it is fruitless to try to determine whether the issue involved is either policy or implementation, but that the remedy is to make sure that if enough people believe the issue involves some controversy, we need find a way to get it back to the GNSO. (This work actually all resulted from your letter to the Board objecting to the implementation of the Strawman Solution without coming back to the GNSO for advice.) Staff commented they wanted direction and didn’t want to be in the middle of this controversy. In fact, it was Marika who pointed out that nobody should waste time trying to determine whether the issue was a policy issue or an implementation issue. (You will recall Fadi said it was implementation.) This particular issue may have been pre-launch but many other case studies we reviewed were not pre-launch. So to my mind, your examples in the chart are confusing because several of them would clearly be covered by GNSO Input, Guidance, or Expedited PDP procedures which can easily kick in post-launch. But – to answer the question about “fourth”: Policy Implementation (which we have seen can involve policy issues) CPIF – including GNSO Input, GNSO Guidance, and GNSO Expedited PDP procedures where issues arise (GNSO determines how serious the issue is) Predictability Framework – but several of the items in the chart actually fit in an existing CPIF process. (this is why I say “fourth”) I don’t think calling this “changes to operations” actually creates a different category from those that were considered by the Policy & Implementation Working Group. “Changes to operations” is just another word for “implementation” as nearly as I can tell. In other words, there are already existing mechanisms to deal with many of the examples given in the chart – as enumerated in Item 3. If there are Items we want to back out of the CPIF existing mechanisms or if we truly believe there is a timing difference, that needs to be further illuminated. Yes – this was discussed on many calls and the Report should reflect those discussions. Thanks for your thoughtful responses. We have to be clear with the Community and we don’t want these same questions coming up at the Board level. They need to be resolved here. Anne Anne E. Aikman-Scalese Of Counsel 520.629.4428 office 520.879.4725 fax AAikman@lrrc.com _____________________________ Lewis Roca Rothgerber Christie LLP One South Church Avenue, Suite 2000 Tucson, Arizona 85701-1611 lrrc.com[lrrc.com] From: Jeff Neuman [mailto:jeff.neuman@comlaude.com] Sent: Tuesday, April 17, 2018 7:21 AM To: Aikman-Scalese, Anne; 'Steve Chan'; gnso-newgtld-wg@icann.org Subject: Predictability - Section 1.2.2 Anne, Thanks for the thorough comments. I have renamed the e-mail Chain to reflect the Section of the Report and give my thoughts: Comment from Anne: Under Section 1.2.2 Predictability, item c., Please add the following first sentence. “Currently, as a result of recommendations made by the GNSO, the ICANN Board implemented a process for issues that arise during the implementation phase that permits the GNSO to provide “GNSO Input” or “GNSO Guidance” on an issue or to advise the Board that the issue requires either a full or Expedited PDP. Guidelines for these processes are provided in the GNSO’s Consensus Policy Implementation Framework (“CPIF”). In the second sentence, please change “The Working Group believes that” to “there is support in the Working Group for a recommendation that”. Response from Jeff: Good Suggestions. Can I offer the following slight tweaks: “Under Section 1.2.2 Predictability, item c., Please add the following first sentence. “Currently, as a result of consensus recommendations made by the GNSO, the ICANN Board implemented approved the GNSO’s Consensus Policy Implementation Framework (“CPIF”) {footnote to Framework} a process for issues that arise during the implementation phase of Consensus Policies. This that permits the GNSO to provide “GNSO Input” or “GNSO Guidance” on an issue or to advise the Board that the issue requires either a full or Expedited PDP {Insert Footnote to CPIF where definitions can be found for these terms}. Guidelines for these processes are provided in the GNSO’s Consensus Policy Implementation Framework (“CPIF”).” Comment from Anne: In the second sentence, please change “The Working Group believes that” to “there is support in the Working Group for a recommendation that”. Response from Jeff: Agree with that change. Comment from Anne: In the section “Anticipated Outcome”, please add the following after the first sentence: “The existing CPIF also recognizes this fact and provides for three mechanisms that mandate a process for additional advice where issues arise.” However, many in the New gTLD Subsequent Procedures PDP WG are seeking to establish a supplemental framework (designed to apply when implementation is complete) which, even in the event of changes, etc etc.” Response from Jeff: I think the second paragraph in that section along with the expansion of the discussion in the next section “Details of the Predictability Framework” does exactly what you recommend. Do you disagree? Comment from Anne: In the last sentence in that section on “Anticipated Outcome”, the use of the term “after program launch” is unclear. “Launch” is a clear term as to a particular TLD. Acceptance of applications could be considered “launch” of the next round, but at that time, there would likely still be an IRT. What exactly do we mean by “implementation is considered complete” and who makes that determination? Response from Jeff: In the “Details of the Predictability Framework” Section, under Phase 3 we state: “For the purposes of the New gTLD Program, the effective date may better be considered as the date of program/Applicant Guidebook adoption by the ICANN Board or the opening of the application window.” How about we do the following: a. Put a footnote in the “Anticipated Outcome” section pointing to where we define “Launch”. b. Make it clear in the sentence referenced in Phase 3 above is our proposed definition of “Launch” and c. Add a question in the Feedback section that asks for comment on our definition of Launch. Comment from Anne: In the Section “Details of the Predictability Framework”, please Delete a portion of the second sentence of this section after the word, “ambiguities” and insert the following: “The GNSO proposed and the Board adopted a process whereby the GNSO could provide additional input with respect to various issues which might arise in the implementation phase”. Then begin the new sentence. “The WG is considering proposing the addition of a fourth element to be known as the ‘Predictability Framework” etc etc. (No need for underlining in the actual text – I show this only for emphasis on the requested changes.) Response from Jeff: I am a little confused as to why you are referring to it as a fourth element. The first element is policy development. The second is implementation (as covered by the CPIF). The Implementation Phase ends when the program is launched. Therefore, the third is this “Predictability Framework.” What am I missing? The Predictability Framework which envisions setting up a Standing IRT can refer things back to Phase 1 or Phase 2 at their discretion, but I re-read the CPIF and it does not necessarily apply once there is a launch of a program and changes to operations may need to be made. That is why we are creating this Framework in the first place as discussed on the numerous call. That said, I have no issue adding the work “considering” before the word “proposing” in that first paragraph. Comment from Anne: Add the following to list of questions for feedback: How do you see the proposed Predictability Framework interacting with the existing CPIF procedures known as GNSO Input, GNSO Guidance, and GNSO Expedited PDP? In other words, when would these processes be utilized and when would application of the Predictability Framework make more sense? Response from Jeff: Makes sense. We will work that in. Jeffrey J. Neuman Senior Vice President |Valideus USA | Com Laude USA 1751 Pinnacle Drive, Suite 600 Mclean, VA 22102, United States E: jeff.neuman@valideus.com or jeff.neuman@comlaude.com T: +1.703.635.7514 M: +1.202.549.5079 @Jintlaw The following additions/changes are needed to avoid the conflict with existing ICANN Board adopted policy in this arena: Under Section 1.2.2 Predictability, item c., Please add the following first sentence. “Currently, as a result of recommendations made by the GNSO, the ICANN Board implemented a process for issues that arise during the implementation phase that permits the GNSO to provide “GNSO Input” or “GNSO Guidance” on an issue or to advise the Board that the issue requires either a full or Expedited PDP. Guidelines for these processes are provided in the GNSO’s Consensus Policy Implementation Framework (“CPIF”). In the second sentence, please change “The Working Group believes that” to “there is support in the Working Group for a recommendation that”. In the section “Anticipated Outcome”, please add the following after the first sentence: “The existing CPIF also recognizes this fact and provides for three mechanisms that mandate a process for additional advice where issues arise.” However, many in the New gTLD Subsequent Procedures PDP WG are seeking to establish a supplemental framework (designed to apply when implementation is complete) which, even in the event of changes, etc etc.” In the last sentence in that section on “Anticipated Outcome”, the use of the term “after program launch” is unclear. “Launch” is a clear term as to a particular TLD. Acceptance of applications could be considered “launch” of the next round, but at that time, there would likely still be an IRT. What exactly do we mean by “implementation is considered complete” and who makes that determination? In the Section “Details of the Predictability Framework”, please Delete a portion of the second sentence of this section after the word, “ambiguities” and insert the following: “The GNSO proposed and the Board adopted a process whereby the GNSO could provide additional input with respect to various issues which might arise in the implementation phase”. Then begin the new sentence. “The WG is considering proposing the addition of a fourth element to be known as the ‘Predictability Framework” etc etc. (No need for underlining in the actual text – I show this only for emphasis on the requested changes.) In the Section entitled “What specific questions are the PDP WG seeking feedback on?”, please add the following question: How do you see the proposed Predictability Framework interacting with the existing CPIF procedures known as GNSO Input, GNSO Guidance, and GNSO Expedited PDP? In other words, when would these processes be utilized and when would application of the Predictability Framework make more sense? Thank you, Anne Anne E. Aikman-Scalese Of Counsel 520.629.4428 office 520.879.4725 fax AAikman@lrrc.com _____________________________ Lewis Roca Rothgerber Christie LLP One South Church Avenue, Suite 2000 Tucson, Arizona 85701-1611 lrrc.com[lrrc.com] From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces@icann.org] On Behalf Of Steve Chan Sent: Friday, April 13, 2018 8:39 PM To: gnso-newgtld-wg@icann.org Subject: [Gnso-newgtld-wg] Proposed agenda - New gTLD Subsequent Procedures PDP WG - 16 April 2018 at 20:00 UTC Dear WG Members, Below, please find the proposed agenda for the New gTLD Subsequent Procedures WG meeting scheduled for Monday 16 April 2018 at 20:00 UTC, for 90 minutes. Agenda Review Roll Call/SOIs Review of the Initial Report (continued) AOB For item 3 of the agenda, we will be reviewing another section of the draft Initial Report. Attached, please find an extract of the section on Overarching Issues, which includes eight (8) topics. Those signed up as Members to this PDP WG should have received meeting information from the SOAC Support team. If you did not receive these participation details or if you would like to send your apologies, please contact the SOAC Support team (gnso-secs@icann.org). Best, Steve Steven Chan Policy Director, GNSO Support ICANN 12025 Waterfront Drive, Suite 300 Los Angeles, CA 90094-2536 steve.chan@icann.org mobile: +1.310.339.4410 office tel: +1.310.301.5800 office fax: +1.310.823.8649 Find out more about the GNSO by taking our interactive courses and visiting the GNSO Newcomer pages[gnso.icann.org]. 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