September 2017 - Ws2-jurisdiction

Proposed Final OFAC Recommendation for Plenary
by Greg Shatan Sept. 21, 2017

Sept. 21, 2017

As discussed on Monday's call, the plan is to submit the OFAC Recommendation for consideration by the Plenary in next week's call. The document deadline for next week's plenary is 23:59 UTC on Wednesday, September 20. As promised on Monday's call, I revised the draft recommendation in Google Docs to reflect the discussions on the call and then circulated PDF and Word copies to the list for review and comment. I received comments from Milton Mueller on the list, which were consistent with the Monday call, and the draft has been updated with these comments. I am attaching PDF and Word copies of the latest version of the OFAC Recommendation, which I believe is very close to final form. I have included a clean copy of the proposed final version, and a version with track changes, showing the changes to the pre-call version of the Recommendations. IF you want to read the Recommendation, I think the clean version is much easier to follow. The track changes version is useful if you want to see what changes are made. So that we may have a Google Doc that shows the proposed final OFAC Recommendation as it will be submitted (i.e., without revisions and comments), I have created a new Google Doc, which I encourage you all to read over one more time before it goes to the plenary. The link is: https://docs.google.com/document/d/1xLDx7IevK2s7yQ1naD3cjnlPGnO7oPrRUN61RKE… The marked-up version and all prior drafts are still available at the link previously circulated. If there are any further refinements, corrections, etc., please put them into new, clean version on Google Docs, or add them to the clean document attached here and send it back to the list. Thanks! Greg

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.cat
by Thomas Rickert Sept. 21, 2017

Sept. 21, 2017

Hi all, you might find this article interesting. https://www.internetnews.me/2017/09/20/dotcat-registry-offices-raided-spani… Best, Thomas

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Re: [Ws2-jurisdiction] OFAC Recommendation: Postponing Submission to Plenary
by Seun Ojedeji Sept. 21, 2017

Sept. 21, 2017

Hello Greg, When you say "this text" what/where are they exactly? Regards Sent from my mobile Kindly excuse brevity and typos On Sep 20, 2017 8:53 PM, "Greg Shatan" <gregshatanipc(a)gmail.com> wrote: All, There is some recently suggested text that is still being advanced for possible inclusion in this recommendation. In order to give those supporting this suggested text a greater opportunity to respond to concerns raised about this text, and to avoid even the appearance of a "unilateral decision" (either to include or exclude the text),I have reluctantly concluded that we should postpone submitting this recommendation to the upcoming plenary. Please review this discussion and indicate your position on this text and/or make suggestions for revisions that might garner greater support for the text. If you support some version of any or all of this text ,please also indicate where it should go in the document, since that is not clear. Thank you. Greg _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction(a)icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction

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21092017 Version of OFAC Recommendation Attached
by Greg Shatan Sept. 21, 2017

Sept. 21, 2017

All, I have attached Word and PDF versions of the Google Doc as it now stands, showing suggestions added by Thiago, and suggestions based on list contributions from Kavouss and Paul Rosenzweig. Please review these suggested changes and indicate your views by replying here and/or making suggestions in the Google Doc. it is important that we have broad review of these suggestions. Thank you. Best regards, Greg

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OFAC Recommendation -- Further Suggested Revisions
by Greg Shatan Sept. 21, 2017

Sept. 21, 2017

All, I have attached a further revised OFAC Recommendation, reflecting changes suggested by Kavouss Arasteh and Seun Ojedeji. Word and PDF versions are attached, and the Google Doc reflects these suggested changes as well. I look forward to our call. Best regards, Greg

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Re: [Ws2-jurisdiction] OFAC Rec.s
by Seun Ojedeji Sept. 20, 2017

Sept. 20, 2017

+1 to this. Regards Sent from my mobile Kindly excuse brevity and typos On Sep 20, 2017 9:11 PM, "farzaneh badii" <farzaneh.badii(a)gmail.com> wrote: I suggest we do not get into interpreting EU sanctions. That is a whole separate issue and far beyond our mandate here. We have argued over this many times and came to a very good conclusion. When I asked that ICANN should deter the registrars from following OFAC when they do not have to Sam and others said that ICANN should not get involved with the registrars' internal policy especially when it contradicts with their local laws (I am paraphrasing not quoting them). So we came up with a very good language for ICANN to follow, it is in the doc: "ICANN needs to bring awareness of these issues to registrars. ICANN should clarify to registrars that the mere existence of their RAA with ICANN does not cause them to be required to comply with OFAC sanctions. ICANN should also explore various tools to remind registrars to understand the applicable laws under which they operate and to accurately reflect those laws in their customer relationships." This language is sufficient for ICANN. If some non-US based registrar sanction Iranians not because of the registrar's contract with ICANN, it is out of our hands to do something about it. We have a general recommendation which fits the purpose. Why are we opening this discussion again? I am sympathetic to this issue. One reason is that I was born and raised in Iran. So if Iranians cannot become resellers or registrants at all because of some registrars policies then I will do whatever I can to persuade those registrars to change their policy (if not against the applicable law), but this is not an issue to be discussed at ICANN and this group. Farzaneh On Wed, Sep 20, 2017 at 3:54 PM, Schweighofer Erich < erich.schweighofer(a)univie.ac.at> wrote: > Dear all, > > > > EU sanctions may have affected registrars doing business with Iranian > citizens. > > An overview: http://www.consilium.europa.eu/en/policies/sanctions/iran/ > > Mostly relevant (besides individual sanctions) – lifted on 16 January > 2016: restrictions in the financial sector: freezing the assets of the > Central Bank of Iran and major Iranian commercial banks, laying down > notification and authorisation mechanisms for transfers of funds above > certain amounts to Iranian financial institutions > > > > A general license is a good idea, e.g. excluding explicitly registries and > registrars and its financial transactions from financial sanctions in the > legal instruments. Decisions are the competence of the Council of the EU, > proposed by the High Representative of the Union for Foreign Affairs and > Security Policy. Like in the U.S. – it is not easy but possible. > > > > Best, > > Erich > > > > > > *Von: *Paul Rosenzweig <paul.rosenzweig(a)redbranchconsulting.com> > *Gesendet: *Mittwoch, 20. September 2017 21:29 > *An: *'Greg Shatan' <gregshatanipc(a)gmail.com>; 'Kavouss Arasteh' > <kavouss.arasteh(a)gmail.com> > *Cc: *'ws2-jurisdiction' <ws2-jurisdiction(a)icann.org> > *Betreff: *Re: [Ws2-jurisdiction] OFAC Rec.s > > > > I agree with Greg. It seems clear from what Erica said that this is not > an OFAC issue at all but rather an EU sanctions issue (perhaps ICANN should > also be getting a general license from the EU 😊) and since it is an > individual registrar it isn’t an ICANN issue either > > > > Paul > > > > Paul Rosenzweig > > paul.rosenzweig(a)redbranchconsulting.com > > O: +1 (202) 547-0660 <(202)%20547-0660> > > M: +1 (202) 329-9650 <(202)%20329-9650> > > VOIP: +1 (202) 738-1739 <(202)%20738-1739> > > www.redbranchconsulting.com > > My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830 > 097CA066684 > > > > *From:* ws2-jurisdiction-bounces(a)icann.org [mailto:ws2-jurisdiction-bounc > es(a)icann.org] *On Behalf Of *Greg Shatan > *Sent:* Wednesday, September 20, 2017 2:07 PM > *To:* Kavouss Arasteh <kavouss.arasteh(a)gmail.com> > *Cc:* ws2-jurisdiction <ws2-jurisdiction(a)icann.org> > *Subject:* Re: [Ws2-jurisdiction] OFAC Rec.s > > > > Kavouss, > > > > As a factual happening, I don't see why this should be reflected in our > report. Resello's business decision does not seem to be related to OFAC, > US jurisdiction or to any ICANN-related jurisdiction. > > > > I asked you whether Resello's agreement with ICANN (the Registrar > Accreditation Agreement (RAA)) prohibits Resello from establishing the > policy you have mentioned. If ICANN does not prohibit this policy, and it > is not triggered by OFAC or some other connection to ICANN's jurisdictions, > then it seems to be unconnected to our work. > > > > I don't know whether there is an EU or Dutch law that requires this > policy, or whether there is one that prohibits it. If there is one that > requires it, that is not an "ICANN jurisdiction" issue. If there is one > that prohibits it and Resello is violating Dutch law, then it may be that > Resello is violating the RAA requirement (Section 3.7.2) that Registrars > abide by applicable law. But again, that's a Compliance issue. > > > > Best regards, > > > > Greg > > > > On Wed, Sep 20, 2017 at 1:46 PM, Kavouss Arasteh < > kavouss.arasteh(a)gmail.com> wrote: > > Dear Greg > > I do not know what question you raised. > > If you believe that *Mark Assenberg* > * from Resello which is a subsidiary company for Yourholding holding:* > > *with the below address Ceintuurbaan 28 > <https://maps.google.com/?q=Ceintuurbaan+28+8024+AA+Zwolle&entry=gmail&sourc…>**,8024 > AA Zwolle > <https://maps.google.com/?q=Ceintuurbaan+28+8024+AA+Zwolle&entry=gmail&sourc…>, > +31 38 453 0752 <+31%2038%20453%200752>* > > *based in Netherlands.being a non US-Based company on the basis of > which *section of the RAA refrain such a business decision (i.e., a > registrar deciding not to do business with citizens of a given country > (whether it is Canada, Haiti, Iran or otherwise)? > > May you address this issue as a factual happening . > > Pls kindly advise how you trest and reflect that in the report > > Regards > > Kavouss > > > > On Wed, Sep 20, 2017 at 7:28 PM, Nigel Roberts <nigel(a)channelisles.net> > wrote: > > > > On 20/09/17 18:19, Greg Shatan wrote: > > Can you please guide me to the section of the RAA that would prevent > such a business decision (i.e., a registrar deciding not to do business > with citizens of a given country (whether it is Canada, Haiti, Iran or > otherwise)? > > > In the United Kingdom, never mind the RAA, this would be quite illegal > (see s.13, prohibited conduct) unless such treatment is required by law > (e.g. required by legally binding sanctions). > > How can anyone in the 21st century believe that any "business decision" > doctrine could allow making decisions on the basis of race/citizenship (or > any other protected characteristic) is quite alien over here and > incomprehensible. > > http://www.legislation.gov.uk/ukpga/2010/15 > > > > > > _______________________________________________ > Ws2-jurisdiction mailing list > Ws2-jurisdiction(a)icann.org > https://mm.icann.org/mailman/listinfo/ws2-jurisdiction > > > > > _______________________________________________ > Ws2-jurisdiction mailing list > Ws2-jurisdiction(a)icann.org > https://mm.icann.org/mailman/listinfo/ws2-jurisdiction > > > > _______________________________________________ > Ws2-jurisdiction mailing list > Ws2-jurisdiction(a)icann.org > https://mm.icann.org/mailman/listinfo/ws2-jurisdiction > > _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction(a)icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction

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Re: [Ws2-jurisdiction] RES: OFAC Recommendation -- Further Suggested Revisions
by Seun Ojedeji Sept. 20, 2017

Sept. 20, 2017

Sent from my mobile Kindly excuse brevity and typos On Sep 20, 2017 4:03 PM, "Mueller, Milton L" <milton(a)gatech.edu> wrote: We do ask ICANN to clarify that registrars do not need to follow OFAC sanctions simply due to their contracts with ICANN, and that is important. SO: Can we get ICANN legal to respond to the above as I think it will help someone like myself move from sitting on the fence on this particular topic. Regards *From:* ws2-jurisdiction-bounces(a)icann.org [mailto:ws2-jurisdiction- bounces(a)icann.org] *On Behalf Of *Kavouss Arasteh *Sent:* Wednesday, September 20, 2017 10:48 AM *To:* Thiago Braz Jardim Oliveira <thiago.jardim(a)itamaraty.gov.br>; Thomas Rickert <rickert(a)anwaelte.de>; León Felipe Sánchez Ambía < leonfelipe(a)sanchez.mx>; Jordan Carter <jordan(a)internetnz.net.nz> *Cc:* ws2-jurisdiction(a)icann.org *Subject:* Re: [Ws2-jurisdiction] RES: OFAC Recommendation -- Further Suggested Revisions Deaar Thiago, Dear Jorge, Thanks to your positive r3sponse .I am waiting for Greg to resolve the issue. I strongly oppose to the unilateral removal of the last paragraph as result of off line exchange of views between two or three individual. We should be transparent We should listen to each other.We should consider problems of others Tks Regards Kavouss On Wed, Sep 20, 2017 at 3:46 PM, Thiago Braz Jardim Oliveira < thiago.jardim(a)itamaraty.gov.br> wrote: Dear Greg, I add my voice to Jorge's suggestion and look forward to an agreeable solution. Best, Thiago -----Mensagem original----- De: ws2-jurisdiction-bounces(a)icann.org [mailto:ws2-jurisdiction- bounces(a)icann.org] Em nome de Jorge.Cancio(a)bakom.admin.ch Enviada em: quarta-feira, 20 de setembro de 2017 05:10 Para: gregshatanipc(a)gmail.com Cc: ws2-jurisdiction(a)icann.org Assunto: Re: [Ws2-jurisdiction] OFAC Recommendation -- Further Suggested Revisions Dear Greg, would it be possible that Kavouss' concerns are addressed by you also bilaterally as he seems not to be satisfied with these explanations, This could help avoiding any misunderstanding? I feel we are very close to consensus and such an effort would most probably be helpful in order to allow all to be on board. kind regards Jorge ________________________________ Von: Greg Shatan <gregshatanipc(a)gmail.com> Datum: 20. September 2017 um 07:25:56 MESZ An: Arasteh <kavouss.arasteh(a)gmail.com> Cc: ws2-jurisdiction <ws2-jurisdiction(a)icann.org> Betreff: Re: [Ws2-jurisdiction] OFAC Recommendation -- Further Suggested Revisions All, I wanted to reflect in this email thread how the various topics in the paragraph submitted by Kavouss for potential inclusion in the "General License" recommendation have been dealt with in the document. Here are the different sections of the text, followed by my notes in italics. Generally, ICANN must pursue the application for general license at earliest time and should advertise and communicate with registries and registrars to revise their registrant agreements and not to copy and paste the general agreements found in US-based registrars. The role of ICANN, to make awareness about such situation is critical and should not be undermined. This is now covered in the section on General Licenses, so this is not needed here. There are several reports in the media that US-Based and Non-US registrars have asked registrants to transfer out their domains immediately because they might get affected by US sanctions. This is not related to General Licenses, so it should not be included in that recommendation. Regarding non-US registrars: This issue is generally discussed in the section "Application of OFAC Limitations by Non-US Registrars." If the Subgroup receives media reports of non-US registrars taking such actions and it appears there may be no legal basis for these actions, we could cite them in this section. Since the Subgroup has not seen the reports mentioned here, we do not have any basis to include this sentence, and so it is not included. Regarding US registrars, who have OFAC compliance obligations, there does not appear to be an issue that falls within the purview of the Subgroup. It may well be that these registrars are complying with their legal obligations (or seeking to become compliant with their legal obligations). Samples of that are related to Godaddy and Online Nic, which made pressure against registrants having Iranian citizenship. These are both US-based registrars, who are required to comply with OFAC sanctions. As noted above, it may well be that these registrars are complying with their legal obligations (or seeking to become compliant with their legal obligations). This does not fit with the issue discussed in this report, which relates to mistaken application of OFAC sanctions by non-US registrars, so it is not included. To determine the nature of registrant, registrars usually refer to Admin contact details recorded in whois database. If admin address and phone number is related to sanctioned countries, it is assumed that domain owner is a hidden risk for the registrar, therefore registrars try to examine zero risk policy in regard of penalties imposed by OFAC. This is not related to the General License either. This seems to be directed toward registrars' business practices and business judgment. Without commenting on the validity of the issue, this would not appear to be an issue for this Subgroup or the CCWG. Furthermore, if these are registrars with OFAC compliance obligations, then it may well be that these registrars are complying with their legal obligations. If these are non-US registrars without OFAC compliance obligations, then this issue is covered generally under "Application of OFAC Limitations by Non-US Registrars." As such the paragraph is not included. Best regards, Greg On Tue, Sep 19, 2017 at 1:30 AM, Arasteh <kavouss.arasteh(a)gmail.com<mailto: kavouss.arasteh(a)gmail.com>> wrote: Dear Paul Thank you very much for your comments I am open to soften the text as you suggested e.g. to replace " prove " by " determine" and the term"must" be a less stronger term such as" need" which is between must/ shall/ and may However, due to the fact that we are severely affected by the process, may I humbly request you to kindly agree to retain the idea with slightly modified text to also be agreeable to you. I am jerky awaiting to receive your fair suggestion as soon possible Regards Kavouss Sent from my iPhone On 19 Sep 2017, at 02:16, Paul Rosenzweig <paul.rosenzweig@ redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>> wrote: All Given the lateness with which we received Kavouss's suggested paragraph and revisions and the fact that I, regretfully, could not make the call, let me note my disagreement with two aspects of it: First, on page 5, it is suggested that a survey be undertaken to "prove" that non-US registrars are imposing OFAC requirements. Since the point of the survey is to determine what is true, it is premature to assume that it will "prove" the facts assumed by the proposer. The word "prove" is therefore in error and should be replaced by "determent whether" Second, I oppose the proposed new paragraph at the end simply because, as written, I have absolutely no idea what is meant. But use of terms like "must" as an imperative are always inappropriate in recommendations. Insofar as I can discern the intent (that there is some action being taken by registries against registrants) that issue is a new one that needs to be fully discussed and it is, of course, quite different from the OFAC general license idea for ICANN that we have been discussing (which would only relate to ICANN's on RAA agreements). Paul Paul Rosenzweig paul.rosenzweig(a)redbranchconsulting.com<mailto:paul.rosenzweig@ redbranchconsulting.com> O: +1 (202) 547-0660 <+1%20202-547-0660><tel:(202)%20547-0660 <(202)%20547-0660>> M: +1 (202) 329-9650 <+1%20202-329-9650><tel:(202)%20329-9650 <(202)%20329-9650>> VOIP: +1 (202) 738-1739 <+1%20202-738-1739><tel:(202)%20738-1739 <(202)%20738-1739>> www.redbranchconsulting.com<ht tp://www.redbranchconsulting.com/> My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search= 0x9A830097CA066684 From: ws2-jurisdiction-bounces(a)icann.org<mailto:ws2- jurisdiction-bounces(a)icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Greg Shatan Sent: Monday, September 18, 2017 2:13 PM To: ws2-jurisdiction <ws2-jurisdiction(a)icann.org<mailto: ws2-jurisdiction(a)icann.org>> Subject: Re: [Ws2-jurisdiction] OFAC Recommendation -- Further Suggested Revisions CORRECTED VERSION ATTACHED. A paragraph suggested by Kavouss, which is in the Google Doc, did not show up in the Word document (nor in the PDF, which is based on the Word doc). Corrected versions are attached. Thank you to Kavouss for catching this. Please see the last paragraph in the document so that you can review this suggested text. Also, some crossed-out text at the very end that was supposed to be deleted (as noted on last week's call) has now been deleted from the attached (and the Google Doc). Greg On Mon, Sep 18, 2017 at 1:42 PM, Greg Shatan <gregshatanipc(a)gmail.com< mailto:gregshatanipc@gmail.com>> wrote: All, I have attached a further revised OFAC Recommendation, reflecting changes suggested by Kavouss Arasteh and Seun Ojedeji. Word and PDF versions are attached, and the Google Doc reflects these suggested changes as well. I look forward to our call. Best regards, Greg _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction(a)icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction(a)icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction(a)icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction(a)icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction

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OFAC Recommendation: Postponing Submission to Plenary
by Greg Shatan Sept. 20, 2017

Sept. 20, 2017

All, There is some recently suggested text that is still being advanced for possible inclusion in this recommendation. In order to give those supporting this suggested text a greater opportunity to respond to concerns raised about this text, and to avoid even the appearance of a "unilateral decision" (either to include or exclude the text),I have reluctantly concluded that we should postpone submitting this recommendation to the upcoming plenary. Please review this discussion and indicate your position on this text and/or make suggestions for revisions that might garner greater support for the text. If you support some version of any or all of this text ,please also indicate where it should go in the document, since that is not clear. Thank you. Greg

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OFAC Recommendation and other interference in ICANN's core activities
by Schweighofer Erich Sept. 20, 2017

Sept. 20, 2017

Dear all, I find the present proposal a well-written document and a good compromise. Some reflections from the point of view of international law: It is important that Internet is a neutral global resource, not subject to general sanctions by U.S., other countries or the Security Council of the UN. Here, we are moving to a “global common”. However, ICANN does not seek for licenses in individual sanctions (SDN list, such lists exist also in other countries). This means an option (hopefully not used) for territorial jurisdictions to interfere with ICANN’s core activities. The SDN list of today has 1054 pages. Compliance is secured by obligations of the financial sector concerning money laundering and terrorist fighting (FATF Recommendations) that require a search in related commercial watch list vendors with additional information (e.g. Thomson Reuters Accelus/World-Check or Reed Elsevier/Bankers Accuity, Dow Jones). Any banking transaction - very important in the domain name business – becomes nearly impossible. Jurisdiction principles decide about the most appropriate forum. For individual sanctions, states with its legal systems and due process of law seem to be a much better forum that ICANN. In most cases, international law will support the sanctions and ICANN would only have an additional burden in assessing “illegal” individual sanctions, e.g. not allowed under international law. Thus, ICANN should accept the principle of territoriality but other jurisdictions have no obligation to recognise these sanctions. This applies also for registries and registrars. The caused problems for individuals are not new (e.g. Cadi case). Pragmatic solutions may not exist but are part of the weaknesses of the international system. I propose an additional remedy: It would be helpful if ICANN provides support in such cases of “illegal sanctions” against individuals if they occur, e.g. supporting on a case-by-case basis individuals fighting in national legal systems against such measures. Best regards, Erich P.S. Thanks, Thomas. Very interesting. It will be a never ending job to avoid interference in ICANN’s core activities. Von: Thomas Rickert Gesendet: Mittwoch, 20. September 2017 10:58 An: ws2-jurisdiction(a)icann.org Betreff: [Ws2-jurisdiction] .cat Hi all,you might find this article interesting.https://www.internetnews.me/2017/09/20/dotcat-registry-offices-raided-spanish-police/Best,Thomas

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Revised OFAC Recommendation
by Greg Shatan Sept. 20, 2017

Sept. 20, 2017

All, Based on our very fruitful discussions today, I have revised the OFAC Recommendation in the Google Doc. Clean and track changes copies are attached in Word and PDF, showing changes made to the draft that existed prior to today's call. You may find it easier to read the "clean" version, since the call today resulted in a number of recommendations becoming much more focused, which also resulted in changes to the text leading up to each recommendation. Please make comments here or in the Google Doc ASAP. Our plan is to present this to the Plenary at the upcoming meeting. The deadline for documents is 23:59 UTC on Wednesday, September 20. To allow for final clean-up, all comments should be received and resolved no later than 20:00 UTC on Wednesday. Thank you for your attention to these documents. Greg

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