RE: [gnso-iocrc-dt] RE: Explanation of the Dates in the Public Comment Forum

["Gomes, Chuck" <cgomes@xxxxxxxxxxxx>]

Because the lines between policy development and implementation are blurry and 
probably always will be, I think we need to be careful about concluding that 
public comment and timeline requirements apply to one and not the other.  
Certainly the implementation process will not follow all the requirements of a 
PDP but I believe many of the same principles apply, not the least of which are 
transparency, multi-stakeholder involvement and consensus building.  The GNSO 
is not finished once a policy is approved; it is our responsibility to ensure 
that the policy is implemented appropriately.  If time permitted,  the RySG 
would support following the regular comment period requirements and, in the 
case of our future work on the second level, we will do that.  We need to be 
very cautious about making exceptions to existing processes and should have 
pretty strong support to do so; in this case, I believe that the exceptions are 
justifiable but I respect the fact that some disagree with that.

Chuck

From: Shatan, Gregory S. [mailto:GShatan@xxxxxxxxxxxxx]
Sent: Tuesday, March 06, 2012 10:17 AM
To: Konstantinos Komaitis; Thomas Rickert; Gomes, Chuck
Cc: Margie Milam; Neuman, Jeff; gnso-iocrc-dt@xxxxxxxxx; Stéphane Van Gelder
Subject: RE: [gnso-iocrc-dt] RE: Explanation of the Dates in the Public Comment 
Forum


On one level, it matters a great deal if this is policy or implementation.  If 
this were policy, we would need to follow the GNSO PDP, including the required 
public comment periods.  If it is implementation, we would not.  There is 
nothing I can see inthe ICANN playbook that requires a DT advising the GNSO on 
responding to a GAC request for comments on a GAC proposal to open a public 
comment period.  Even more so, when this is an interim response from the chair 
of the DT.  Even though we have been treating this as implementation, the sense 
of the call last week was to maximize transparency by putting the top level 
proposal out for public comment.

It is entirely appropriate for implementation to be run through different 
structures and timeframes than policy.  Policy unfolds over a lengthy, 
multistage process.  Implementation needs to be nimble.  The timeframes for 
policy are not suitable for implementation and vice versa.

In retrospect, and in reading the transcript of the call, I don't think we 
appreciated the apparent rigidity of the public comment rules.  And here you 
may be right -- whether policy or implemention, whether required or 
self-imposed, whether part of the "bottom-up" process or sua sponte (see, e.g., 
the Board's "defensive applications" comment period) -- all requests for 
comment put into the "public comments" system ust apparently follow the same 
rigid structure.  On the call, after Margie described the public comment 
process, there was disagreement about whether the rules described by Margie 
should apply in this circumstance.  However, that probably did not frame the 
question correctly.  The question should have been, given the minimum comment 
periods required by the formal public comment periods and the fact that a 
formal public comment period is not required, how can we maximize feedback and 
transparency without compromising the timeline of our work?  Instead, we 
stepped into the public comment process thinking there was flexibility, where 
there apparently is none.

On another level, it also matters whether this is implementation or policy.  
You ask "what really stops other ICANN policy groups from using other or 
similar justifications to 'adjust' the public comment period timeframe?"  If 
this is implementation, your question is based on a false premise -- since we 
are not a "policy group," nothing we do serves as precedent for the actions of 
policy groups.  In any event, I believe the answer to your question is the GNSO 
PDP.

The horse has already left the barn on whether these two organizations are 
receiving special protection.  It is in the AGB.  The question we have been 
grappling with for the last several months is whether the absolute prohibition 
against delegation at the top level (even as to the organizations themselves) 
is the appropriate or intended protection  The rough consensus of the group is 
that it is not the appropriate protection, and the feedback that we have 
received from those involved in the process whereby that prohibition ended up 
in the AGB is that it was not the intended protection.  The proposal the group 
fashioned dealt with modifying this protection.

Finally, if the test for "bad precedent" is putting something in place when 
there are "valid questions as to whether it is necessary," I would submit that 
the entire New gTLD Program is the "poster child" for bad precedent.

Thank you.

Greg
________________________________
From: owner-gnso-iocrc-dt@xxxxxxxxx [mailto:owner-gnso-iocrc-dt@xxxxxxxxx] On 
Behalf Of Konstantinos Komaitis
Sent: Tuesday, March 06, 2012 5:17 AM
To: 'Thomas Rickert'; Gomes, Chuck
Cc: Margie Milam; Neuman, Jeff; 'gnso-iocrc-dt@xxxxxxxxx'; 'Stéphane Van Gelder'
Subject: RE: [gnso-iocrc-dt] RE: Explanation of the Dates in the Public Comment 
Forum
Thanks for this clarification Margie. It is very helpful.

It is important we follow here the GNSO rules and, in particular, if these 
rules reflect the need to comply with the ATRT recommendations. We may call it 
‘policy’ or ‘implementation’ – it doesn’t really matter. Here there is a clear 
rule that we are attempting to ‘amend due to exceptional circumstances’. And, 
this is a slippery slope. If we do so, what really stops other ICANN policy 
groups from using other or similar justifications to ‘adjust’ the public 
comment period timeframe? There are some of us who believe that a bad precedent 
is already being set here (by seeking to provide special protection for these 
two organizations when there are really valid questions as to whether it is 
necessary) and through our attempts to minimize the time of the public comment 
period, I believe we are encouraging an additional one.  The fact that this 
timeframe was established according to the ATRT recommendations and this should 
be sufficient for us; even the GAC has put a lot of emphasis on the ATRT 
recommendations.

Thanks

Konstantinos

Dr. Konstantinos Komaitis,

Senior Lecturer,
Director of Postgraduate Instructional Courses
Director of LLM Information Technology and Telecommunications Law
University of Strathclyde,
The Law School,
Graham Hills building,
50 George Street, Glasgow G1 1BA
UK
tel: +44 (0)141 548 4306
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Selected publications: http://hq.ssrn.com/submissions/MyPapers.cfm?partid=501038
Website: www.komaitis.org<http://www.komaitis.org>

From: owner-gnso-iocrc-dt@xxxxxxxxx [mailto:owner-gnso-iocrc-dt@xxxxxxxxx] On 
Behalf Of Thomas Rickert
Sent: Δευτέρα, 5 Μαρτίου 2012 5:55 μμ
To: Gomes, Chuck
Cc: Margie Milam; Neuman, Jeff; 'gnso-iocrc-dt@xxxxxxxxx'; 'Stéphane Van Gelder'
Subject: Re: [gnso-iocrc-dt] RE: Explanation of the Dates in the Public Comment 
Forum

Dear all,
IMHO we are currently trying to find ways to _implement_ a decision that has 
already been made by the board. The situation is completely different to the 
GNSO developing policy.

As far as I can remember, we made this clear during our previous calls and in 
particular in the call with the GAC. The proposal that has been circulated only 
affects the first round and is subject to a review, if needed.

As a consequence of the aforesaid and with the time pressure given, it can 
easily be explained why procedures are not adhered to as the GNSO usually would.

The risk of failing to deliver on this matter is far higher than to be 
criticized for formal aspects.

Thomas

Am 05.03.2012 um 18:44 schrieb Gomes, Chuck:




Thanks Margie.  What was clearly explained on Friday's call?  Did you state 
that there must be 21 + 21 comment period and explain why?

With regard to GNSO comment periods, the Council should have the right to make 
exceptions when needed as long as justification is provided.  Is only the Board 
able to make exceptions?

Chuck



-----Original Message-----
From: owner-gnso-iocrc-dt@xxxxxxxxx<mailto:owner-gnso-iocrc-dt@xxxxxxxxx> 
[mailto:owner-gnso-iocrc-
dt@xxxxxxxxx<mailto:dt@xxxxxxxxx>] On Behalf Of Margie Milam
Sent: Monday, March 05, 2012 12:23 PM
To: Neuman, Jeff; 'gnso-iocrc-dt@xxxxxxxxx<mailto:gnso-iocrc-dt@xxxxxxxxx>'
Cc: 'Stéphane Van Gelder'
Subject: [gnso-iocrc-dt] Explanation of the Dates in the Public Comment
Forum


Dear All,

I wanted to provide some clarification with regard to the new public
comment policy as it affects the IOC/RC DT’s posting.

In order to get the comment period opened on Friday, the dates were
changed to match the new policy—see:
http://www.icann.org/en/news/public-comment.

This Board mandated public comment policy was adopted as part of the
adoption of the ATRT recommendations, and has been in effect since the
beginning of the year.  It applies to all public comments, regardless
of whether the comment originates in a PDP or from other types of work.

The policy states that:

Each public comment topic (opened from 1 January 2012) is subject to a
Comment and a Reply period as follows:
•           The official minimum Comment period is 21 days.
•           The official minimum Reply period is 21 days.
•           If no substantive comments are received during the Comment
period, then there will be no   Reply period.
•           During the Reply period, participants should address previous
comments submitted; new posts         concerning the topic should not be
introduced. When constructing Replies, contributors are       asked to
cite the original poster's name, comment date, and any particular text
that is pertinent.

This was clearly explained on Friday’s call.  I thought it best to get
it posted ASAP, since I do not have the ability to override the Boards’
policy, rather than miss the opportunity to post on Friday.

Best Regards,

Margie

-----Original Message-----
From: Neuman, Jeff [mailto:Jeff.Neuman@xxxxxxxxxx]
Sent: Monday, March 05, 2012 4:43 AM
To: Margie Milam; 'gnso-iocrc-dt@xxxxxxxxx<mailto:gnso-iocrc-dt@xxxxxxxxx>'
Cc: 'Stéphane Van Gelder'
Subject: RE: [gnso-iocrc-dt] RE: Draft Public Comment For Review- Final
Version

All,

I just wanted everyone to know that despite the conversation on the
list and the fact that i edited the comment period description to end
the day before the Council meeting, ICANN staff decided to have the
public comment period end March 23, and this new "reply period" to end
on April 14th (2 days after the application window closes).  I wanted
to bring this to everyone's attention because I fully expect Icann
staff to defend their letter of the status quo for round 1 based solely
on the fact that the public comment period ends after the window
closes.  I am extremely disappointed In yet another attempt to
circumvent our process and the work we are doing and would like to add
this to the list of questions for Icann staff.  I also expect criticism
from the community if we ask the gnso to act before the public comment
period ends.  I have already have 2 reporters point this out to me and
ask if that meant that the notion of changes were "killed".  (I did not
respond).

I would like to ask for those dates to be revised so as to not create
confusion or the perception that neither the gnso council or the
stafford can act before the comment period is up.



Sent with Good (www.good.com<http://www.good.com>)


-----Original Message-----
From:   Neuman, Jeff [mailto:Jeff.Neuman@xxxxxxxxxx]
Sent:    Friday, March 02, 2012 08:44 PM Eastern Standard Time
To:       'Margie Milam'; 
'gnso-iocrc-dt@xxxxxxxxx<mailto:gnso-iocrc-dt@xxxxxxxxx>'
Subject:           RE: [gnso-iocrc-dt] RE: Draft Public Comment For Review-
Final Version


Thanks Margie.  We really appreciate the quick turnaround,



Sent with Good (www.good.com<http://www.good.com>)


-----Original Message-----
From:   Margie Milam [mailto:Margie.Milam@xxxxxxxxx]
Sent:    Friday, March 02, 2012 05:40 PM Eastern Standard Time
To:       gnso-iocrc-dt@xxxxxxxxx<mailto:gnso-iocrc-dt@xxxxxxxxx>
Subject:           [gnso-iocrc-dt] RE: Draft Public Comment For Review-  Final
Version

Dear All,



I accepted Jeff’s revisions and caught a few typos.   The proposal is
untouched, except to add a footnote with the date.



Since there don’t appear to be any more comments,  this will be
forwarded for posting.



Best regards,



Margie







From: Neuman, Jeff [mailto:Jeff.Neuman@xxxxxxxxxx]
Sent: Friday, March 02, 2012 1:32 PM
To: Margie Milam; gnso-iocrc-dt@xxxxxxxxx<mailto:gnso-iocrc-dt@xxxxxxxxx>
Subject: RE: Draft Public Comment For Review



Sorry for the delay, but this looks right to me.



Jeffrey J. Neuman
Neustar, Inc. / Vice President, Business Affairs



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From: owner-gnso-iocrc-dt@xxxxxxxxx<mailto:owner-gnso-iocrc-dt@xxxxxxxxx> 
[mailto:owner-gnso-iocrc-
dt@xxxxxxxxx<mailto:dt@xxxxxxxxx>] On Behalf Of Margie Milam
Sent: Friday, March 02, 2012 2:32 PM
To: gnso-iocrc-dt@xxxxxxxxx<mailto:gnso-iocrc-dt@xxxxxxxxx>
Subject: [gnso-iocrc-dt] RE: Draft Public Comment For Review
Importance: High



Dear All,



Attached for your review is the DT Proposal to be posted with the
Public Comment announcement discussed in below.   I have also attached
a redline indicating the changes from the Status Report.



Please let me know ASAP if you have any suggested changes or revisions
to this document.



All the best,



Margie





From: Margie Milam
Sent: Friday, March 02, 2012 12:03 PM
To: 'gnso-iocrc-dt@xxxxxxxxx<mailto:gnso-iocrc-dt@xxxxxxxxx>'
Subject: Draft Public Comment For Review
Importance: High



Dear All,



As discussed on today’s call, please find attached for your review the
announcement of the opening of a public comment on the proposed
solution. I will circulate the proposal document separately.



Please provide any comments ASAP.  I  plan to forward to the web admin
team, per the DT’s instructions, this afternoon, at 4:00pm PST.



All the best,



Margie




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