[Gnso-newgtld-wg] Notes and Action Items - New gTLD Subsequent Procedures PDP WG - 16 December 2019

[Julie Hedlund]

Dear Working Group members,

Please see below the notes from the meeting on 16 December 2019. These high-level notes are designed to help WG members navigate through the content of the call and are not a substitute for the recording, transcript, or the chat, which will be posted at: https://community.icann.org/display/NGSPP/2019-12-16+New+gTLD+Subsequent+Procedures+PDP.

Kind regards,
Julie
Julie Hedlund, Policy Director

Notes and Action Items:

Actions:

ACTION ITEM 1: See if we think there are any variations in the rules for the SPIRT and the rules for the IRT and spell them out.
ACTION ITEM 2: Adjust the language in Jeff’s proposal --  The SPIRT makes a recommendation to the Council, and then the Council has 30 days to decide either to take it up as a full issue or by default or affirmation, or if only one Councilor asks to consider the recommendation more fully, then the Council would be given a certain number of meetings to make its decision.

Notes:

1. Updates to Statements of Interest: No updates provided.

2. Predictability Framework: https://docs.google.com/document/d/12_x8zYR9r6zXqfA7dmoosSPH12NmcyJ-2FEjecGrBh4/edit#heading=h.7kd5yr7uelh2

-- The way to make progress is to address some of the specific questions in the latter part of the paper.

Role of the SPIRT & GNSO policy change process in change control:
-- SPIRT should begin after the publication of the final AGB.
-- Constituted in advance if possible and follow the IRT Principles and Guidelines document.
-- The SPIRT can review any potential change before it is made to determine which of the categories delineated above are relevant to the change.
-- It is also the group that can raise any issues of policy-implementation conflict to the GNSO Council for further discussion and possible uses of for example, the EPDP or the GNSO Guidance Process.

Discussion:
-- Question Re: Constituted in advance “to the extent possible and applicable and follow the IRT Principles and Guidelines” -- suggests that they might not follow the Principles and Guidelines?  Answer: It might be that not every principle will apply.  There are some rules of an IRT that are not intended to apply to a standing IRT.  We can say they can use it as a guide, but if we make it a mandate not everything will fit in.  Question: What would prevent the SPIRT from going off in a different direction that was not anticipated.  Answer: Why not say “the IRT should develop the exact rules for the SPIRT based on the IRT Principles and Guidelines document.”  What if we put in a note that we are not being prescriptive but we recommend that there are rules in place before the SPIRT begins work.  Take out “if applicable”.  Say, “...should apply to the greatest extent possible.”

Role of the SPIRT
-- What decision-making authority does the SPIRT have, if any?  All “decisions” are advisory in nature and intended to serve as guidance for ICANN staff as well as the GNSO Council and community.
-- When must the GNSO Council be consulted?
SPIRT will submit its advice/recommendations to the GNSO Council who maintains a supervisory role.

The GNSO Council should employ processes and procedures to consider the SPIRT recommendations as expeditiously as possible.
-- Ultimately the GNSO Council can choose to accept the recommendations of the SPIRT or reject them by letting the SPIRT know of its decision, rationale and proposed next steps.
-- Proposal from Jeff:  We could state that unless the Council objects to the advice/recommendation within a certain period of time it is deemed accepted without a formal approval.  We could also state that if there is a threshold of Councilors that would like to consider the advice more in depth and require an express approval or rejection vote of the Council, then it can do so.
-- If we did that, what would be that threshold?  One Councilor or some %? [Remember, we are going for efficiency]

Discussion:
-- Don’t ask the IRT to define the SPIRT role.
-- IRT should not be filing in "holes".  No way can we or the IRT anticipate all situations.  If situations arise that don't fit the IRT rules as applied to SPIRT, the GNSO Council must weigh in.  Too many layers +delay.  The SPIRT just acts as an IRT after the applications come in, so not sure why there is a need for the IRT should deliberate on what the SPIRT should do.  Once you constitute the SPIRT it just acts like an IRT.  There doesn’t need to be another layer.
-- All the roles should be settled by the time the SPIRT is formed.
-- We could do a gap analysis of how we think the SPIRT is different from a standard IRT.
-- It's easier to just say that if SPIRT wants to deviate from IRT rules (other than its standing status), it must review that with GNSO Council as Greg proposed.
-- Accepted unless rejected within a certain period of time is pretty scary.  We would be inviting filibuster at the Council table.
-- All voting can be done by e-mail, but requires both discussion and prior notice. So it's not as quick.
-- Limit Council deliberation to 2 meetings.
-- The problem is the substantive changes after the AGB is published.
-- There could be an issue if this rule is introduced as to which process is being followed because it only takes one Councilor to raise an issue under the Input, Guidance, and EPDP process.

ACTION: See if we think there are any variations in the rules for the SPIRT and the rules for the IRT and spell them out.
ACTION: Adjust the language in Jeff’s proposal --  The SPIRT makes a recommendation to the Council, and then the Council has 30 days to decide either to take it up as a full issue or by default or affirmation, or if only one Councilor asks to consider the recommendation more fully, then the Council would be given a certain number of meetings to make its decision.

Composition of the SPIRT:

Discussion:
-- I think the community organizations (such as the SOs and ACs) should have members on the SPIRT.
-- IRT rules note that re: composition the IRT should be open but may not be representative of the community depending on level of interest.
-- Just note that CPIF already has a provision re technical expertise on IRT and IRT rules apply.  Question: Are you saying that a technical expert may not be a standing member and may need to be added? Answer: We could create a standing slot for an expert, or say that when necessary the SPIRT would reach out to experts.
-- Then just say that you add an expert - doesn't change the fact that the SPIRT should be representative of the community.
-- Re: Notion of an IRT being open; SPIRT could have nominated members rather than a completely open team seems to contrast with a notion of a standing panel.
-- See for an ordinary IRT  the limitation to topic expertise makes sense (to me at least)  but for SPIRIT  the engagement should be perhaps wide, inclusive and specific in design (yet allow flexibility for the AC/SOs).
-- The issue about appointed representatives is a significant one.
-- I think we should look to the Customer Standing Committee composition for a good example— four “expert” members and liaisons from all AC/SOs. 2 year appointment so that there is consistency and corporate memory.
-- So the question could then be if the participation should be “obligatory”?
-- Re: the principle of efficiency and size -- if your goal is to have a standing group that can take an issue and make a recommendation relatively quickly, then looking at the IRT composition doesn’t exactly fit.
-- The narrow scope of the CSC is also testament to its success, so clearly articulating the scope of the SPIRT is also important.
-- Yes SPIRIT needs balance and/or the ability for inclusion of all interested parties but still limited in size as such.
-- The CSC is by nature a narrowly focused, technically oriented, group aimed at the functioning of IANA.  It doesn’t get into policy debates.  So it is easy to define what types of expertise are needed.  Unless we have a very narrow scope for the SPIRT the CSC structure won’t work.
-- I don't think we are saying that the group should be the same composition.  I think we are saying it should be a closed group (whatever the composition), and one where people are appointed for a good period of time (for continuity).

-- On the other hand, we have to look at the balance between not taking too long time to get a result and properly represented.
-- Staff should also be members of the SPIRT, as they are also potential experts for changes being requested from other parts of the community.  I think you can draw parallels from the CSC. Or staff could be in a supporting role.
-- Question: Are there requirements for IRT participants to have participated in the PDP or other policy processes?
-- Are we getting confused between those who implement and those who review implementation?
-- Agree on the scope and then we can argue about the membership of the SPIRT. Because this will be a standing panel, its realistic to think that members will swap in and out depending on the change under discussion.
-- You need more than one person with the PDP WG background.  If there is only ONE member, there are no checks and balances on that one member's interpretation of what happened in the policy-making process.
-- Given that timeline, the SPIRT should certainly have members of the IRT, even if somehow the WG members all fade away by that time…

Length of the Term of SPIRT members?  Proposal from Jeff: Given that the role of the SPIRT is intended to be a Standing Committee, I would recommend a term of 2 years unless replaced by that particular group that put the person on the SPIRT Team.  I did not believe there is a need for a term limit, but what do others think?
-- Leave it to the appointing group.
-- Don’t have to be so prescriptive.
-- Don’t need to set a term limit -- let the appointing group decide.

Role of the SPIRT member (representative vs independent judgment) -- If the group is “representative” of the community, what should the role of the IRT member(s) be?  Should theyiet be acting in a “representative capacity” or should they be required to exercise independent judgement?  [Jeff’s Proposal is that they exercise independent judgment.  If the group that put them there is not satisfied with that person’s activities, they can always replace them through their own internal processes?]
-- Independent is okay.  As a practical matter, trying to find one representative for the GNSO isn’t possible.
-- Even if every group in ICANN could appoint someone it would be virtually impossible for them to be representative.
-- Think about the multi-stakeholder balance -- We are saying that the person who comes from that community should exercise independent judgment.  But would think it would be up to the appointing organization to decide how the member should be accountable.
-- Some appointing bodies may have specific rules or requirements.

Conflicts of Interest:  SPIRT members must complete a Statement of Interest, which are subject to periodic review. In some circumstances, where an issue has a specific effect on a member of the SPIRT, that member may want to recuse themselves from consideration of that issue. [Jeff:  Perhaps an expanded SOI akin to that of the Name Collision Project]
-- Makes sense.
-- More detailed SOI tailored to SPIRT team.
-- Realize that there will be members that will be conflicted but it shouldn’t preclude them from participating.
-- Declaration as applicant is good, perhaps just to also mention inclusion of relevant (PDP) experience.
-- Just has to be a known as opposed to Unknown set of issues.
-- Perhaps, there should be a restriction on participation that there should only be one person representing an organisation, for example Neustar could only have one employee on the SPIRT.

Confidentiality obligations: Absent extraordinary circumstances, all proceedings of the SPIRT shall be open, recorded, transcribed, and publicly available.

ICANN Staff role and level of participation: Should ICANN’s role in this process be akin to their participation in IRTs? As ICANN Org may surface an issue itself, and should ICANN Org utilize/wield the Predictability Framework where applicable.
-- Another inconsistency with the IRT guidelines.

Decision-making process:
-- Consensus, Majority, or something else?
-- Is there extra weight given to directly impacted parties similar to that currently given to contracted parties in their Agreements?
-- Jeff:  Propose Majority?

Discussion:
-- We don’t want the majority to rush things through, but unlike policy groups where you could have a majority but not consensus, in the SPIRT the group has to make a decision.
-- Concerns about majority: can make decisions in a timely manner and the question is what is the standard for those decisions.  Set a time limit.
-- But SPIRT makes recommendations not decisions necessarily, right?
-- I assume there will be a Chair of this group, would the Chair have the discretion to call it?
-- Look at how the IRT makes decisions since SPIRT is supposed to be a standing IRT.  IRTs in general do not have chairs.
 IRTs are "chaired" if at all by GDD.
-- SPIRT makes recommendations not decisions necessarily, plus there's oversight by GNSO Council.
-- This all underscores the importance of 1 Councilor being able to bring the outcomes to Council.  It really takes the fear out an abuse by a Chair or an obstinate member of the Spirit.
-- The IRT guidelines point to the decision-making process in the WG Guidelines.

Discuss on the List:
Role of Public Comment?
Jeff Proposal:  Recommendations are advisory in nature and therefore public comment may not be necessary on the recommendations. GNSO Council has oversight.
ALAC: Response to question - Believes additional consideration is needed about whether all operational changes should be subject to public comment. Fundamental/possible policy impact changes must always go through a GNSO procedure.

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