[client com] ICANN Bylaws on Budget - DT-O Input Needed

[Flanagan, Sharon]

Dear All,

ICANN Legal is proposing the following edits to Sections 22.4 and 22.5 and Annex F.  Can DT-O confirm these edits are acceptable or identify any concerns?  We thought #1 and #2 looked ok; however, we understand “uninterrupted” was discussed by DT-O.  ICANN Legal explained their concern with “uninterrupted” below:

“Uninterrupted could be read to signal a technical SLA that the minute to minute (or second to second) performance of IANA functions will always be “uninterrupted”.  While that is clearly what our team strives for (and we do not have complaints as far as I’m aware of regarding our performance levels), we should avoid technical SLA language to move to what we understood the intention to be, that there not be gaps in funding that put the fact of performance of the IANA functions at risk.  Then whatever technical agreements there are on how that service will be delivered should be housed elsewhere.”

One alternative that should meet the concern raised by ICANN Legal, while also covering the concept of no interruptions is below:

“to ensure performance of those IANA functions and PTI in the future is not interrupted due to lack of funding”

With respect to #3, Sidley proposed language to try and capture the DT-O request.  ICANN Legal’s edits are reflected as a redline to our proposed language.  Please advise if this captures the concept being requested by DT-O, which is also below.  Also, is the bracketed language necessary?

Thanks,
Sharon

PROPOSED EDITS TO 22.4, 22.5 AND ANNEX F


1.       ICANN Legal Proposed Edits to Section 22.4(f):
“To maintain ongoing operational excellence and financial stability of the IANA functions (so long as they are performed by ICANN or pursuant to contract with ICANN) and PTI, ICANN shall be required to plan for and allocate funds to ICANN’s performance of the IANA functions and to PTI, as applicable, that are sufficient to cover the future expenses and contingencies to ensure uninterruptedcontinuous performance of those IANA functions and PTI in the future.”


2.       ICANN Legal Proposed Edits to Annex F(1)(f)
“Notwithstanding any other principle listed above, prevents ICANN, in its responsibility to fund the operations of the IANA functions, from initiating activities that areremain subject to community consideration (or for which that community consultation has not concluded) with respect to the applicable IANA Budget, including without limitation, preventing implementation of any contentious expendituresexpenditure or undertaking any contentious actionsaction that werewas the subject of the IANA Budget that was rejected by the EC andthat triggered the need for the Caretaker IANA Budget.”


3.       Current Draft Language – Section 22.4(b)(i):

Separately and in addition to the general ICANN planning process, ICANN shall require PTI shallto prepare and submit to the PTI Board a proposed annual operating plan and budget for PTI’s performance of the IANA functions for the next fiscal year (“PTI Budget”). ICANN shall require PTI shallto consult with the Supporting Organizations and Advisory Committees[, as well as the Registries Stakeholder Group, the IAB and RIRs,] during the PTI Budget development process, and shall seek public comment on the draft PTI Budget prior to approval of the PTI Budget by PTI. TheICANN shall require PTI to submit the PTI Budget shall be submitted to ICANN as an input prior to and for the purpose of being included in the proposed Operating Plan (as defined in Section 22.5(a)) and ICANN Budget.

This draft language attempts to capture this language in the attached DT-O document, modified to align with comparable language relating to the ICANN Budget:
“Separately and in addition to the general ICANN planning process, PTI shall prepare and submit to the PTI Board a proposed operating plan and budget for the IANA functions for the upcoming planning cycle. Such proposed operating plan and budget shall provide appropriate information to enable a consultation process allowing for broad community engagement and input, including appropriate steps for addressing such community input. The proposed operating plan and budget for the IANA functions, resulting from such process, shall be submitted to ICANN as input prior to and for the purpose of being included in the proposed ICANN operating plan and budget, itself then subject to a broad consultation process, including appropriate steps for addressing community input.”




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