[council] [Ext] FW: [gnso-chairs] Update on SubPro ODP and Policy Question Set #6

Tue Nov 29 23:29:50 UTC 2022

Dear Councilors,

The link to the draft response is below in Jeff’s email forwarded by Anne, but also here for your convenience: https://docs.google.com/document/d/18C6Vulnv6V0Akyq3IeehWuSGg1TAHCYJEBGXHrAVRx8/edit?usp=sharing

The Word is also attached.

Best,
Steve

From: "Aikman-Scalese, Anne" <AAikman at lewisroca.com>
Date: Monday, November 28, 2022 at 7:46 AM
To: "COUNCIL at GNSO.ICANN.ORG" <council at gnso.icann.org>
Cc: Steve Chan <steve.chan at icann.org>
Subject: [Ext] FW: [gnso-chairs] Update on SubPro ODP and Policy Question Set #6

Please see below from Jeff.  He says my changes have been incorporated into the Council’s Response to Question Set # 6.  STEVE – could you please post the final Google link and a Word doc to the Council list for final “non-objection” approval by Council members?   (I understand Leadership will determine the deadline for non-objection.)

Thank you,
Anne

Anne E. Aikman-Scalese

Of Counsel

AAikman at lewisroca.com<mailto:AAikman at lewisroca.com>

D. 520.629.4428

[cid:image002.png at 01D90407.6B0879A0]

From: Jeff Neuman <jeff at jjnsolutions.com>
Sent: Monday, November 28, 2022 8:16 AM
To: Aikman-Scalese, Anne <AAikman at lewisroca.com>; Steve Chan <steve.chan at icann.org>; Sebastien at registry.godaddy; dibiase at amazon.com; john.mcelwaine at nelsonmullins.com
Subject: RE: [gnso-chairs] Update on SubPro ODP and Policy Question Set #6

[EXTERNAL]
________________________________
[Removed the Council as that is beyond my posting privileges as the liaison]

Thanks Anne.  These have now been incorporated into the draft [docs.google.com]<https://urldefense.com/v3/__https:/docs.google.com/document/d/18C6Vulnv6V0Akyq3IeehWuSGg1TAHCYJEBGXHrAVRx8/edit__;!!PtGJab4!5iVN_MStgHJ-1NyYYmvtZhAZfqymhxPeujmFxTdN9Adxsx7CkEXjSYGcgnxbwHBzDL_9lCOL6I1RNj3mIlEV_4Cl$>.

Council Leadership – How long should we keep this open for comment so that I can submit it to ICANN’s ODP Team?

Sincerely,

Jeff

[cid:image003.png at 01D90407.6B0879A0]

Jeffrey J. Neuman
Founder & CEO
JJN Solutions, LLC
p: +1.202.549.5079
E: jeff at jjnsolutions.com<mailto:jeff at jjnsolutions.com>
http://jjnsolutions.com [jjnsolutions.com]<https://urldefense.com/v3/__http:/jjnsolutions.com__;!!PtGJab4!5iVN_MStgHJ-1NyYYmvtZhAZfqymhxPeujmFxTdN9Adxsx7CkEXjSYGcgnxbwHBzDL_9lCOL6I1RNj3mIsKVfOBt$>

From: Aikman-Scalese, Anne <AAikman at lewisroca.com<mailto:AAikman at lewisroca.com>>
Sent: Wednesday, November 23, 2022 3:08 PM
To: Steve Chan <steve.chan at icann.org<mailto:steve.chan at icann.org>>; Sebastien at registry.godaddy<mailto:Sebastien at registry.godaddy>; COUNCIL at GNSO.ICANN.ORG<mailto:COUNCIL at GNSO.ICANN.ORG>; gnso-secs at icann.org<mailto:gnso-secs at icann.org>; GNSO-Chairs <gnso-chairs at icann.org<mailto:gnso-chairs at icann.org>>
Cc: Jeff Neuman <jeff at jjnsolutions.com<mailto:jeff at jjnsolutions.com>>
Subject: RE: [gnso-chairs] Update on SubPro ODP and Policy Question Set #6
Importance: High

Thanks Steve and Jeff, for the drafting and the further explanation.  As an active participant on Sub Pro and given that the small team will not be convened for this Council response to Question Set #6, I have some suggested changes for consideration by the full Council which I believe are important procedurally.    Those changes are shown in purple in the attached document and pasted again below.  I summarize the reasons for the changes here:

  1.  Council should affirm Org’s stated understanding that if Implementation Guidance must be varied, Org should specify the “valid reasons” (language from the Sub Pro Final Report) and should consult with the IRT regarding appropriate alternatives.

  1.  The Org’s question regarding Recommendation 17.12 in relation to the Applicant Support program presents a special case due to the initiation of the GNSO Guidance Process on Applicant Support.  I think we need to say that in that case, variations to Implementation Guidance should be the subject of consultations with the Applicant Support Guidance Team.

  1.  In cases where the IRT is not yet formed and no GNSO Guidance Process (or other process outlined in the GNSO Operating Procedures) has been initiated, org should specify the reasons for recommending a variation to the Implementation Guidance and should seek the opinion of Council, e.g. via the procedures applicable to the GNSO Input process.  (Presumably the last case could theoretically happen after Board review of the Operational Design Assessment.)

I believe the changes below and in the attached draft preserve the appropriate role for Council in connection with Implementation as provided in the PDP Manual and in the GNSO Guidance Process.  This will be particularly important in relation to the development of the Applicant Support program as the Guidance Process proceeds.

The recommended changes are pasted below and shown in the attached draft.  It is good to know (as Steve said yesterday) that there would not be any sort of “hold-up” in the expected date for the org’s delivery of the Operational Design Assessment based on the requested response to Question Set #6.  This is an important topic and may require discussion at the Council level in our December meeting.  (Thank you, Jeff, for offering to review this in December.)

If required, I am noting a formal objection to the initial draft without the suggested changes.  (Jeff said this doesn’t go on the Council’s agenda unless a Councilor objects so I am trying to follow the rules.)

AEAS Proposed Changes to the Response to Sub Pro ODP Question Set #6

The Council agrees with your understanding that  “if something cannot be implemented exactly as specified in Implementation Guidance, the org would be expected to describe its efforts and rationale for such cases, and to work with the IRT to implement an alternative in line with the purpose behind the recommended action”.  In relation to the GNSO Initiated Applicant Support Guidance Process that has been launched in response to the question posed by the ODP, the Council believes that alternatives to the specified Implementation Guidance should be addressed in the context of that GNSO Guidance Process and would expect the org to work with the Applicant Support Guidance Team to address any required changes to Implementation Guidance.

In short,  implementation guidance remains a strong recommendation as opposed to a requirement.  As referenced in the Preamble to the Sub Pro Final Report, ICANN  should specify any “circumstances where there may be valid reasons not to take such guidance exactly as described…”   In such circumstances, Council believes that consultation with the IRT, the Guidance Process Team, or the Council itself (e.g. via a request for GNSO Input) is in order prior to the adoption of alternatives to the specified Implementation Guidance.   In all cases, the implementation should be accomplished in a manner that achieves the objectives laid out in the implementation guidance even if the mechanism of implementation differs slightly from that contained in the final report.

Thank you,
Anne

Anne E. Aikman-Scalese

Of Counsel

AAikman at lewisroca.com<mailto:AAikman at lewisroca.com>

D. 520.629.4428

[cid:image002.png at 01D90407.6B0879A0]

From: Steve Chan <steve.chan at icann.org<mailto:steve.chan at icann.org>>
Sent: Tuesday, November 22, 2022 2:50 PM
To: Aikman-Scalese, Anne <AAikman at lewisroca.com<mailto:AAikman at lewisroca.com>>; Sebastien at registry.godaddy<mailto:Sebastien at registry.godaddy>; COUNCIL at GNSO.ICANN.ORG<mailto:COUNCIL at GNSO.ICANN.ORG>; gnso-secs at icann.org<mailto:gnso-secs at icann.org>; GNSO-Chairs <gnso-chairs at icann.org<mailto:gnso-chairs at icann.org>>
Cc: Jeff Neuman <jeff at jjnsolutions.com<mailto:jeff at jjnsolutions.com>>
Subject: Re: [gnso-chairs] Update on SubPro ODP and Policy Question Set #6

[EXTERNAL]
________________________________
Hi Anne, I see your response came in before I completed this response. Just noting that I’ve seen it already, but think the response below should still hopefully be helpful.

Hi Anne,

Let me try and answer your question. The SubPro ODP Team has an understanding of how implementation guidance should be treated, which in their words is, “a strongly recommended action and that if in some circumstances there may be valid reasons not to take such guidance exactly as described, this would remain consistent with the Final Report.” This understanding comes from the Final Report preamble and was reinforced by previous ODP question/answers.

There is specific phrasing for a handful of recommendations where the SubPro ODP Team wants to validate that their understanding of implementation guidance, pasted above, still holds true. The reason they are asking is because the recommendation language (i.e., “must”) cites the implementation guidance in the recommendation language itself, potentially creating a relationship requirement between the recommendation and embedded implementation guidance. I’ve highlighted an example of the language that is causing the potential ambiguity, where it can be construed that the implementation guidance in these specific instances, must be fulfilled precisely “as detailed” in order to meet the requirements of the recommendation.

  *   Recommendation 17.12: ICANN org must develop a plan for funding the Applicant Support Program, as detailed in the Implementation Guidelines below.

Here is a link to Jeff’s draft responses, where you can see that he validates the SubPro ODP Team understanding of implementation guidance, which holds for these specific recommendations: https://docs.google.com/document/d/18C6Vulnv6V0Akyq3IeehWuSGg1TAHCYJEBGXHrAVRx8/edit?pli=1 [docs.google.com]<https://urldefense.com/v3/__https:/docs.google.com/document/d/18C6Vulnv6V0Akyq3IeehWuSGg1TAHCYJEBGXHrAVRx8/edit?pli=1__;!!PtGJab4!5iVN_MStgHJ-1NyYYmvtZhAZfqymhxPeujmFxTdN9Adxsx7CkEXjSYGcgnxbwHBzDL_9lCOL6I1RNj3mIs331V6z$>. As requested, the draft responses are attached in Word.

Hopefully this provides a bit of clarity and I certainly welcome Jeff, as well as Councilors, to weigh in.

Best,
Steve

From: Gnso-chairs <gnso-chairs-bounces at icann.org<mailto:gnso-chairs-bounces at icann.org>> on behalf of "Aikman-Scalese, Anne via Gnso-chairs" <gnso-chairs at icann.org<mailto:gnso-chairs at icann.org>>
Reply-To: "Aikman-Scalese, Anne" <AAikman at lewisroca.com<mailto:AAikman at lewisroca.com>>
Date: Tuesday, November 15, 2022 at 9:04 AM
To: "Sebastien at registry.godaddy<mailto:Sebastien at registry.godaddy>" <Sebastien at registry.godaddy<mailto:Sebastien at registry.godaddy>>, "COUNCIL at GNSO.ICANN.ORG<mailto:COUNCIL at GNSO.ICANN.ORG>" <council at gnso.icann.org<mailto:council at gnso.icann.org>>, "gnso-secs at icann.org<mailto:gnso-secs at icann.org>" <gnso-secs at icann.org<mailto:gnso-secs at icann.org>>, GNSO-Chairs <gnso-chairs at icann.org<mailto:gnso-chairs at icann.org>>
Cc: Jeff Neuman <jeff at jjnsolutions.com<mailto:jeff at jjnsolutions.com>>
Subject: Re: [gnso-chairs] Update on SubPro ODP and Policy Question Set #6

Thanks Sebastien.  JEFF – I am a bit confused by the examples presented in Question Set 6 from the Sub Pro ODP team.  The examples are all labelled “Recommendation” and all include the word “must” which has a defined meaning in the Sub Pro Final Report.  The Implementation Guidance does not generally include the word “must”.  That word was used consistently in connection with Recommendations and Question Set 6 appears to be reciting “must” Recommendations but treating them as Implementation Guidance.

Could you please clarify the question being asked in Question Set 6?  (I have previously volunteered to join that Sub Pro small team.)
Thank you,
Anne

Anne E. Aikman-Scalese

Of Counsel

AAikman at lewisroca.com<mailto:AAikman at lewisroca.com>

D. 520.629.4428

[cid:image005.png at 01D90407.6B0879A0]

From: council <council-bounces at gnso.icann.org<mailto:council-bounces at gnso.icann.org>> On Behalf Of Sebastien--- via council
Sent: Saturday, November 12, 2022 3:10 AM
To: COUNCIL at GNSO.ICANN.ORG<mailto:COUNCIL at GNSO.ICANN.ORG>; gnso-secs at icann.org<mailto:gnso-secs at icann.org>; GNSO-Chairs <gnso-chairs at icann.org<mailto:gnso-chairs at icann.org>>
Subject: [council] FW: Update on SubPro ODP and Policy Question Set #6

[EXTERNAL]
________________________________
Dear Council Colleagues,

Please find below our Council Liaison to the SubPro ODP’s latest updates.
Thank you Jeff for providing these. Please review them ahead of our meeting on 17 November (or 16 depending on time zones).

Kindly,

Sebastien Ducos
GoDaddy Registry | Senior Client Services Manager
[signature_615475152]
+33612284445
France & Australia

sebastien at registry.godaddy<mailto:sebastien at registry.godaddy>

From: Jeff Neuman <jeff at jjnsolutions.com<mailto:jeff at jjnsolutions.com>>
Date: Thursday, 10 November 2022 at 10:30 pm
To: john.mcelwaine at nelsonmullins.com<mailto:john.mcelwaine at nelsonmullins.com> <john.mcelwaine at nelsonmullins.com<mailto:john.mcelwaine at nelsonmullins.com>>, dibiase at amazon.com<mailto:dibiase at amazon.com> <dibiase at amazon.com<mailto:dibiase at amazon.com>>, Sebastien Ducos <sebastien at registry.godaddy<mailto:sebastien at registry.godaddy>>
Cc: Steve Chan <steve.chan at icann.org<mailto:steve.chan at icann.org>>, SubPro ODP Mailman List <subpro-odp at icann.org<mailto:subpro-odp at icann.org>>
Subject: Update on SubPro ODP and Policy Question Set #6
Caution: This email is from an external sender. Please do not click links or open attachments unless you recognize the sender and know the content is safe. Forward suspicious emails to isitbad at .

Dear Council Leadership,

Can you please post this on the GNSO Council List?

This afternoon I had my November call with the ICANN Org SubPro Team led by Karen Lentz.  Here is the latest update:

  1.  On Schedule.  During that call, ICANN org confirmed that they are in fact on schedule to deliver the Operational Design Assessment the week of December 12th.   The team met its deadline for “pens down” which was yesterday and the document is undergoing internal review.  In addition, they are working on an executive summary.

  1.  Updated Assumptions.  On November 8th, ICANN posted a new Assumptions document (https://www.icann.org/en/system/files/files/draft-assumptions-subsequent-procedures-odp-08nov22-en.pdf [nam10.safelinks.protection.outlook.com]<https://urldefense.com/v3/__https:/nam10.safelinks.protection.outlook.com/?url=https*3A*2F*2Fwww.icann.org*2Fen*2Fsystem*2Ffiles*2Ffiles*2Fdraft-assumptions-subsequent-procedures-odp-08nov22-en.pdf&data=05*7C01*7Csebastien*40registry.godaddy*7Ce21657625e724106c3ec08dac3627c19*7Cd5f1622b14a345a6b069003f8dc4851f*7C0*7C0*7C638037126406400846*7CUnknown*7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0*3D*7C3000*7C*7C*7C&sdata=WDjkCRSUq*2F1YgOFooSvr*2FUi8*2FYrGTChDPKpLQokBXQs*3D&reserved=0__;JSUlJSUlJSUlJSUlJSUlJSUlJSUlJSUlJSUl!!PtGJab4!4Stw-jXVq_QBNICX4R3oorIe6ltW0qCjwYnOEUAXWq1KH-ALnx8A0w3FamY8_gnrkmLsLYGuXIiAMtwvjP7TASIaUEjZ$>) which contains all of the previous assumptions (in grey) as well some new ones (not in grey).

  1.  GNSO Council Briefing on ODA.  The ICANN org ODP team would like to set up a call with the Council the week of December 5th to give the Council a preview of the assessment like they did for the SSAD ODA.  They will also go over their expectations on timing, and an input mechanism for feedback on the ODA.  Like the SSAD ODA, there will not be a formal public comment period, but there may be opportunities for Q&A and potentially providing our own input to the Board.

  1.  Community Webinar on ODA.  After the ODA is released the week of the 12th, ICANN is planning on conducting a webinar for the community to discuss the assessment.  It will be open to anyone interested in the program.

  1.  Final (?) Question Set.  The ICANN SubPro ODP Team has posted an additional question that they would like us to respond to regarding the role of Implementation Guidance where a Recommendation incorporates by reference such Implementation guidance.   They have confirmed that the ODA release is not dependent on the timing of our response to Question Set 6 provided that their view in that question is consistent with ours (which I believe is).  I have copied the question and am working on a proposed response in the following Google Document.

https://docs.google.com/document/d/18C6Vulnv6V0Akyq3IeehWuSGg1TAHCYJEBGXHrAVRx8/edit?usp=sharing [nam10.safelinks.protection.outlook.com]<https://urldefense.com/v3/__https:/nam10.safelinks.protection.outlook.com/?url=https*3A*2F*2Fdocs.google.com*2Fdocument*2Fd*2F18C6Vulnv6V0Akyq3IeehWuSGg1TAHCYJEBGXHrAVRx8*2Fedit*3Fusp*3Dsharing&data=05*7C01*7Csebastien*40registry.godaddy*7Ce21657625e724106c3ec08dac3627c19*7Cd5f1622b14a345a6b069003f8dc4851f*7C0*7C0*7C638037126406400846*7CUnknown*7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0*3D*7C3000*7C*7C*7C&sdata=ME31m*2F*2BmMuhpNH8*2FqNV4*2F7i0mRSBXMF4RmR7e5JuYtg*3D&reserved=0__;JSUlJSUlJSUlJSUlJSUlJSUlJSUlJSUlJSUlJSU!!PtGJab4!4Stw-jXVq_QBNICX4R3oorIe6ltW0qCjwYnOEUAXWq1KH-ALnx8A0w3FamY8_gnrkmLsLYGuXIiAMtwvjP7TAWToioD8$>

  1.  Council SPS Planning.  We discussed other activities that will need to occur after the ODA is delivered to the Board including the commencement of two (2) IRPs once the ICANN Board approves the recommendations.  The Final Report Recommendations include one IRT for Applicant Support and a second IRT for everything else.  We believe it is a good idea to discuss this at the Council SPS in December which involves a discussion of the work in the coming year for the Council.

Please let me know if you have any questions or you would like me to go over any of this as AOB during the Council meeting on the 17th.

Sincerely,

Jeffrey J. Neuman
GNSO Liaison to SubPro

[cid:image007.png at 01D90407.6B0879A0]

Jeffrey J. Neuman
Founder & CEO
JJN Solutions, LLC
p: +1.202.549.5079
E: jeff at jjnsolutions.com<mailto:jeff at jjnsolutions.com>
http://jjnsolutions.com [nam10.safelinks.protection.outlook.com]<https://urldefense.com/v3/__https:/nam10.safelinks.protection.outlook.com/?url=http*3A*2F*2Fjjnsolutions.com*2F&data=05*7C01*7Csebastien*40registry.godaddy*7Ce21657625e724106c3ec08dac3627c19*7Cd5f1622b14a345a6b069003f8dc4851f*7C0*7C0*7C638037126406400846*7CUnknown*7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0*3D*7C3000*7C*7C*7C&sdata=S8phyLFjfG*2BoYoJV*2Fn3y5C2zXKR27fomIIwL5IRyj6I*3D&reserved=0__;JSUlJSUlJSUlJSUlJSUlJSUlJSUlJQ!!PtGJab4!4Stw-jXVq_QBNICX4R3oorIe6ltW0qCjwYnOEUAXWq1KH-ALnx8A0w3FamY8_gnrkmLsLYGuXIiAMtwvjP7TAXMH3Fba$>

From: Michael Karakash <michael.karakash at icann.org<mailto:michael.karakash at icann.org>>
Sent: Thursday, November 10, 2022 2:53 PM
To: Jeff Neuman <jeff at jjnsolutions.com<mailto:jeff at jjnsolutions.com>>; SubPro ODP Mailman List <subpro-odp at icann.org<mailto:subpro-odp at icann.org>>
Subject: Policy Question Set #6

Hi Jeff,

It was great connecting on today’s call to discuss the latest ODP-related developments. As noted, we recently drafted a new Policy Question Set (#6) focused on the topic of Implementation Guidance that I am attaching to this email.

Please don’t hesitate to reach out if you have questions or need any clarification.

Thank you!

Best,
Michael

________________________________

This message and any attachments are intended only for the use of the individual or entity to which they are addressed. If the reader of this message or an attachment is not the intended recipient or the employee or agent responsible for delivering the message or attachment to the intended recipient you are hereby notified that any dissemination, distribution or copying of this message or any attachment is strictly prohibited. If you have received this communication in error, please notify us immediately by replying to the sender. The information transmitted in this message and any attachments may be privileged, is intended only for the personal and confidential use of the intended recipients, and is covered by the Electronic Communications Privacy Act, 18 U.S.C. §2510-2521.

________________________________

This message and any attachments are intended only for the use of the individual or entity to which they are addressed. If the reader of this message or an attachment is not the intended recipient or the employee or agent responsible for delivering the message or attachment to the intended recipient you are hereby notified that any dissemination, distribution or copying of this message or any attachment is strictly prohibited. If you have received this communication in error, please notify us immediately by replying to the sender. The information transmitted in this message and any attachments may be privileged, is intended only for the personal and confidential use of the intended recipients, and is covered by the Electronic Communications Privacy Act, 18 U.S.C. §2510-2521.

________________________________

This message and any attachments are intended only for the use of the individual or entity to which they are addressed. If the reader of this message or an attachment is not the intended recipient or the employee or agent responsible for delivering the message or attachment to the intended recipient you are hereby notified that any dissemination, distribution or copying of this message or any attachment is strictly prohibited. If you have received this communication in error, please notify us immediately by replying to the sender. The information transmitted in this message and any attachments may be privileged, is intended only for the personal and confidential use of the intended recipients, and is covered by the Electronic Communications Privacy Act, 18 U.S.C. §2510-2521.

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