[council] [GNSO-SubProPendingRecs-ST] Point of Order - Sub Pro Pending Recommendations Small Team Work

Tue Oct 24 12:13:05 UTC 2023

Thanks Anne.  Do you have any concerns with telling the Board that both a Supplemental Recommendation and Implementation Guidance is something the small team is considering and ultimately will bring to the broader council for their approval?

Thanks,
Greg

From: Anne ICANN <anneicanngnso at gmail.com>
Sent: Tuesday, October 24, 2023 4:16 AM
To: Paul McGrady <paul at elstermcgrady.com>
Cc: DiBiase, Gregory <dibiase at amazon.com>; Tomslin Samme-Nlar <mesumbeslin at gmail.com>; COUNCIL at GNSO.ICANN.ORG; gnso-subpropendingrecs-st at icann.org
Subject: RE: [EXTERNAL] [GNSO-SubProPendingRecs-ST] [council] Point of Order - Sub Pro Pending Recommendations Small Team Work

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P.S. - To put it very succinctly, a statement made to the Board that Council will be providing Implementation Guidance on Applicant Support is premature.  Only Council can determine whether or not that will be the case.  Accordingly, the statement made to the GAC was also premature.

This bears very directly on Council small team transparency issues that have come to the forefront in recent community discussions.  Again, the distinction between Policy Recommendations and Implementation Guidance is an important one and the two should not be subject to "blurred lines."

Anne

Anne Aikman-Scalese
GNSO Councilor
NomCom Non-Voting 2022-2024
anneicanngnso at gmail.com<mailto:anneicanngnso at gmail.com>

On Tue, Oct 24, 2023 at 3:31 AM Anne ICANN <anneicanngnso at gmail.com<mailto:anneicanngnso at gmail.com>> wrote:
Thanks Greg.  As stated by Paul to the GAC, the Council will be providing ideas for the Board that will constitute Implementation Guidance.  I don't think the Council has decided that the Supplemental Recommendation developed by the Annex A Section 9 process will include Implementation Guidance.  The concern here is that the Recommendation itself will be watered down from the Recommendation approved from the Final Report and that Implementation Guidance is in fact not binding on the Board.  Thus, the small team , in its meeting with the Board, should not be telescoping a result that translates to Implementation Guidance when the members of the Small Team Plus may have different input from that and when the Council itself may want to opt to provide a Supplemental Recommendation which constitutes policy (as opposed to Implementation Guidance.)

in contrast to the statement that was made before the GAC, it would be more accurate to say that there are several ideas that have been put forward, that these will be considered in the Small Team Plus deliberations, and that some of these may constitute Supplemental Policy Recommendations and some may constitute Implementation Guidance.  It should not be stated, ahead of Small Team Plus deliberations and a Council vote on the recommendations sent to Council from the Small Team Plus, that the ideas put forward will be developed will constitute mere "Implementation Guidance".  That is jumping the gun and taking over the role that belongs exclusively to Council.  It should be much more clear that very specific ideas to be examined in the process may end up being Policy Recommendations, not just Implementation Guidance.

Anne
Anne Aikman-Scalese
GNSO Councilor
NomCom Non-Voting 2022-2024
anneicanngnso at gmail.com<mailto:anneicanngnso at gmail.com>

On Tue, Oct 24, 2023 at 2:28 AM Paul McGrady <paul at elstermcgrady.com<mailto:paul at elstermcgrady.com>> wrote:
Thanks Greg.  That’s right.  It is likely that the Small Team Plus will have both a Supplemental Recommendation for Council to consider and also Implementation Guidance.

Best,
Paul

From: DiBiase, Gregory <dibiase at amazon.com<mailto:dibiase at amazon.com>>
Sent: Tuesday, October 24, 2023 4:19 AM
To: Paul McGrady <paul at elstermcgrady.com<mailto:paul at elstermcgrady.com>>; Tomslin Samme-Nlar <mesumbeslin at gmail.com<mailto:mesumbeslin at gmail.com>>; Anne ICANN <anneicanngnso at gmail.com<mailto:anneicanngnso at gmail.com>>; COUNCIL at GNSO.ICANN.ORG<mailto:COUNCIL at GNSO.ICANN.ORG>
Cc: gnso-subpropendingrecs-st at icann.org<mailto:gnso-subpropendingrecs-st at icann.org>; Terri Agnew via cou. <council at gnso.icann.org<mailto:council at gnso.icann.org>>
Subject: RE: [GNSO-SubProPendingRecs-ST] [council] Point of Order - Sub Pro Pending Recommendations Small Team Work

Hi All,

I understand the concern about stating definitively that Applicant Support would constitute mere "Implementation Guidance" rather than actual policy.  But I’m not sure that’s the case.  My understanding was that outputs from the Small Team Plus that are sent to Council for consideration would likely consist of both a Supplemental Recommendation and Implementation Guidance. Is that accurate Paul?

Anne and Tomslin- do you have any concerns with telling the Board that both a Supplemental Recommendation and Implementation Guidance is something the small team is considering and ultimately will bring to the broader council for their approval?

Thanks,
Greg

From: GNSO-SubProPendingRecs-ST <gnso-subpropendingrecs-st-bounces at icann.org<mailto:gnso-subpropendingrecs-st-bounces at icann.org>> On Behalf Of Paul McGrady
Sent: Tuesday, October 24, 2023 1:42 AM
To: Tomslin Samme-Nlar <mesumbeslin at gmail.com<mailto:mesumbeslin at gmail.com>>; Anne ICANN <anneicanngnso at gmail.com<mailto:anneicanngnso at gmail.com>>
Cc: gnso-subpropendingrecs-st at icann.org<mailto:gnso-subpropendingrecs-st at icann.org>; Terri Agnew via cou. <council at gnso.icann.org<mailto:council at gnso.icann.org>>
Subject: RE: [EXTERNAL] [GNSO-SubProPendingRecs-ST] [council] Point of Order - Sub Pro Pending Recommendations Small Team Work

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Hi Anne and Tomslin,

Thank you both for this.  If the goal is to only make a Supplemental Recommendation, that relegates us to only a Policy position and no position on implementation.  This is inconsistent with how the GNSO has been acting for many years.  Saying that we will have (1) a policy Supplemental Recommendation AND (2) implementation guidance is nothing radical at all.  Based on Anne’s email, I think we should take a few minutes to level set in our next call so that everyone can be reminded about the difference between policy recommendations and implementation guidance.  But I don’t think we need to take some decision before speaking with the Board on whether or not Council has the ability to issue both policy Supplemental Recommendations and Implementation Guidance.  The Council clearly does.

Best,
Paul

From: council <council-bounces at gnso.icann.org<mailto:council-bounces at gnso.icann.org>> On Behalf Of Tomslin Samme-Nlar via council
Sent: Monday, October 23, 2023 8:00 PM
To: Anne ICANN <anneicanngnso at gmail.com<mailto:anneicanngnso at gmail.com>>
Cc: gnso-subpropendingrecs-st at icann.org<mailto:gnso-subpropendingrecs-st at icann.org>; Terri Agnew via cou. <council at gnso.icann.org<mailto:council at gnso.icann.org>>
Subject: Re: [council] [GNSO-SubProPendingRecs-ST] Point of Order - Sub Pro Pending Recommendations Small Team Work

Hi all,

Thank you, Anne for pointing this out. I too do not recall any agreement as to the approach  to tackle the Applicant Support ideas, other than that the 'idea' was floated on Sunday as an option.

I think there is also agreement that all proposals/recommendations from the Small Team must be approved by the council before they become official council positions. In fact, during our meeting on Sunday, it was stressed that this be strictly adhered to, especially now that non-council members are being invites to form 'Small Team Plus".

I therefore support Anne's request that we avoid socialising this idea of using implementation guidance and truncating Recommendation 17.2 as the way forward to address Board's concerns on Applicant support until the council approves it.
Warmly,
Tomslin

On Mon, 23 Oct 2023, 22:43 Anne ICANN, <anneicanngnso at gmail.com<mailto:anneicanngnso at gmail.com>> wrote:
Dear Sub Pro Small Team,

Today I heard our Sub Pro Small Team fearless leader Paul announce to the GAC that the ideas around Applicant Support that will be developed by the "Small Team Plus" will constitute "Implementation Guidance" for the Board.  Of course in Sub Pro "speak", Implementation Guidance is a term of art that means the ideas will not constitute a policy recommendation as contemplated by Annex A, Section 9 which speaks of Supplemental Recommendations which are policy recommendations.  I commented on this in our Small Team meeting on Saturday.  (For clarity, "implementation Guidance" is a defined term in the Sub Pro Final Report and it is not obligatory if the Board finds that it is impractical.)

Although Paul began to speak about Implementation Guidance in the small team meeting on Saturday, I don't recall a consensus being developed on this approach.  Perhaps more importantly, it strikes me that the decision as to whether the ideas to be put forward in the Supplemental Recommendation for Applicant Support will constitute Implementation Guidance (and not policy per se) is actually a question for Council and not for the Small Team alone to decide as this is in fact a policy matter.

Perhaps Paul (and staff?) are thinking this is the only workable approach because of the many ideas that have been put forward.  The thought may be that no one idea (or merging of ideas into one consensus Supplemental Recommendation)  will be feasible.  Or that this process would take too long, if achievable at all?  These are all very real concerns.

However, I do need to raise this Point of Order before the meeting with the Board where the Board Statement on Sub Pro Non-Adoption will be reviewed.  I believe that in respecting the boundaries of Small Team work, we would need authorization from Council to state to the Board that suggestions for providing expanded assistance in the realm of Applicant Support would constitute mere "Implementation Guidance" rather than actual policy Recommendations which are Supplemental in nature pursuant to Annex A, Section 9.

Of course it would be easier for the Board to accept a truncated Recommendation 17.2 which is not specific  other than to say "expand Applicant Support".  Then we could tack on various Implementation Guidance ideas which do not actually bind the Board.  However, again I believe that if that is to be the approach taken by the Small Team, it should be approved in advance by Council.)

As incoming Chair, Greg has already indicated in his presentation to Council his concern in relation to transparency of Council small team work.  So let's be very careful about this one as we are due to go before the Board to discuss the non-adopted items in the pending Sub Pro Final Report Recommendations.  Could we please discuss this further in our Closed Session?  I do not think the same statement made today to the GAC should be repeated before the Board without authorization from Council.

Thank you,
Anne

Anne Aikman-Scalese
GNSO Councilor
NomCom Non-Voting 2022-2024
anneicanngnso at gmail.com<mailto:anneicanngnso at gmail.com>
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