Proposed Fundamental Bylaws Change to Move Board Governance Committee's Reconsideration Responsibilities to Another Board Committee

Over the past several years, the BGC's work relating to Reconsideration Requests, which was delegated to the BGC by the Board, has increased exponentially, particularly with the New gTLD Program. As a result of the increased volume of Reconsideration Requests, the BGC was required to focus more of its time on Reconsideration Requests and less on its other governance duties. Given that the new Bylaws in effect on 1 October 2016 expanded the scope of the Reconsideration process, as well as ICANN's other accountability mechanisms, it is anticipated that the volume and complexity of accountability mechanisms filed, including Reconsideration Requests, might increase and that the BGC's workload on Reconsideration Requests will not likely lessen.

As part of its responsibilities, the BGC is tasked with "periodically review[ing] the charters of the Board Committees, including its own charter and work with the members of the Board Committees to develop recommendations to the Board for any charter adjustments deemed advisable." (BGC Charter, I.A, at https://www.icann.org/resources/pages/charter-06-2012-02-25-en) In this role, the BGC recommended, and the Board agreed, that to enhance its own performance and focus on core governance activities, the Reconsideration responsibilities should be moved to a new committee dedicated to oversight of ICANN's accountability mechanisms as deemed appropriate by the Board.

On 3 February 2017, the ICANN Board directed the initiation of the Fundamental Bylaws amendment process to allow for the ICANN community to consider these changes alongside the Board. Under the Bylaws, Article 4, Section 4.2 is part of the "Fundamental Bylaws," the group of Bylaws that can only be amended if the ICANN Board and ICANN's Empowered Community approve. Posting the proposed revisions for public comment is a key part of the Fundamental Bylaws approval process. (See Resolutions 2017.02.03.17 – 2017.02.03.19.)

From 31 March through 10 May 2017, ICANN published the proposed amendments to Article 4, Section 4.2 [PDF, 92 KB] of the ICANN Bylaws for public comment. Five comments were submitted during the public comment period, which the Board has considered. In general, three of the five commenters were supportive of the proposed Fundamental Bylaws changes. One commenter did not express any opinion for or against the proposed Bylaws changes, and one commenter was not in support of making the Fundamental Bylaws change at this time.

As discussed in the Report of Public Comments [PDF, 375 KB], the At-Large Advisory Committee (ALAC) and Afnic noted the Board's responsibility to organize its work to suit the needs of the Board. Afnic praised the effort to better organize the workload within the Board. The Business Constituency (BC) and Non-Commercial Stakeholder Groups (NCSG) noted general support for the Fundamental Bylaws changes as proposed. ALAC, while not questioning the Fundamental Bylaws changes as proposed, requested a "deeper knowledge" on the scope of the BAMC.

One commenter, DotMusic Limited (DML), expressed concerns regarding the impact of the proposed changes on the its currently pending Reconsideration Request. DML stated its opinion that the Fundamental Bylaws changes should not be considered until the Reconsideration Requests that are currently pending have been resolved by the BGC.

Three of the commenters provided inputs on the scope of the draft BGC and BAMC charters that were provided for informational purposes to illustrate how the Fundamental Bylaws changes could be implemented.

ALAC and NCSG also noted their support for the respect of the new processes to achieve Fundamental Bylaws revisions. The NCSG noted that having a non-controversial item about the Board's organization of its work is a good "test case" for the accountability reforms and the new Empowered Community process.

As always, the Board thanks and appreciates the commenters for their submissions. The Board has considered all the comments and finds that no further changes to the proposed Fundamental Bylaws amendments are necessary.

With respect to the concerns expressed about the potential delay on pending Reconsideration Requests because of the proposed Fundamental Bylaws changes, the Reconsideration process has in place time requirements as well as evidentiary consideration requirements that address the commenter's concerns. The Board has also requested that any implementation of the new Bylaws be done in a way that minimizes any potential impacts on pending Reconsideration requestors.

With respect to the concerns regarding the scope of the BAMC and the BGC once the Fundamental Bylaws changes have been implemented, Article 14 of the Bylaws specifies that the Board has the power to organize and establish Board Committees and to delegate to the Committees all legal authority of the Board except as set forth in Article 4, Section 14.2 of the Bylaws. The Board previously directed that "if the proposed amendment to the Fundamental Bylaws is approved in accordance with Article 25.2 of the Bylaws, the Board will constitute the Board Accountability Mechanisms Committee (BAMC)." (See Resolutions 2017.02.03.18-2017.02.03.19.) Accordingly, once the proposed amendments are approved, the Board will constitute the BAMC with oversight of ICANN's Accountability Mechanisms as the Board deems appropriate, approve the charter, and establish the BAMC and the BGC membership. The Board will also approve a revision of the BGC charter to delete the Reconsideration process responsibilities from the BGC, and move other responsibilities as appropriate from the BGC to the BAMC. In addition, the BAMC may be vested with new responsibilities related to more general oversight of ICANN's accountability mechanisms outside of the Reconsideration process. Comments received on the potential charter revisions (which were provided for information purposes during the comment period) should be taken into account, as appropriate, by the BGC as it is developing the new BGC and BAMC charters for Board consideration.

Finally, the Board thanks the Empowered Community for the work in becoming ready for this first exercise of a power.

This action will have no financial impact on the organization and no direct impact on the security, stability or resiliency of the domain name system.

This is an Organizational Administrative Action for which public comment was received.