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###### Department of Commerce

###### National Telecommunications and Information Administration

          - [Docket No. 090420688-9689-01]

# AGENCY:

National Telecommunications and Information Administration, U.S. Department of Commerce.

# ACTION:

Notice of Inquiry.

# SUMMARY:

The U.S. Department of Commerce's National Telecommunications and Information Administration (NTIA) seeks comment regarding the upcoming expiration of the Joint Project Agreement (JPA) with the Internet Corporation for Assigned Names and Numbers (ICANN). This agreement has been in existence since November 25, 1998, and is scheduled to expire on September 30, 2009.

# DATES:

Comments are due on or before June 8, 2009.

# ADDRESSES:

Written comments may be submitted by mail to Fiona M. Alexander, Associate Administrator, Office of International Affairs, National Telecommunications and Information Administration, U.S. Department of Commerce, 1401 Constitution Avenue, N.W., Room 4701, Washington, DC 20230. Paper submissions should include a three and one-half inch computer diskette or compact disc (CD) in HTML, ASCII, Word, WordPerfect, rtf, or pdf format (please specify version). Diskettes or CDs should be labeled with the name and organizational affiliation of the filer and the name of the word processing program used to create the document. Alternatively, comments may be submitted electronically to DNSTransition@ntia.doc.gov. Comments provided via electronic mail also should be submitted in one or more of the formats specified above. Comments will be posted to NTIA's website at http://www.ntia.doc.gov/​comments/​2009/​dnstransition.

# FOR FURTHER INFORMATION CONTACT:

For questions about this Notice contact: Suzanne R. Sene, Office of International Affairs, National Telecommunications and Information Administration, U.S. Department of Commerce, 1401 Constitution Avenue, N.W., Room 4701, Washington, DC 20230, telephone (202) 482-3180; email ssene@ntia.doc.gov. Please direct media inquiries to the Office of Public Affairs, NTIA, at (202) 482-7002.

# SUPPLEMENTARY INFORMATION:

## Background

                    A July 1, 1997, Executive Memorandum directed the Secretary of Commerce to privatize the Internet's domain name and addressing system (DNS) in a manner that increases competition and facilitates international participation in its management.1                     In order to fulfill this Presidential directive, the Department of Commerce in June 1998, issued a statement of policy on the privatization of the Internet DNS, known as the                     *DNS White Paper*                    .2                     In the                     *DNS White Paper*, the Department of Commerce articulated, based upon public input, four principles that would guide the development of an entity called “NewCo” to be established by the private sector. These principles were: stability; competition; private, bottom-up coordination; and                           ( print page 18689)                        representation. In particular, the Department of Commerce committed that it would not conclude its role in DNS management if doing so would cause instability in the DNS. This process of transitioning to private sector leadership these coordination and management functions was termed the DNS Project. The                     *DNS White Paper*                     went on to state that, in making a decision to enter into an agreement to establish a process to transfer current U.S. Government management of DNS to such a new entity, the United States would be guided by, and consider, the proposed entity's commitment to the principles enumerated above.                

                    To this end, the Department of Commerce stated in the                     *DNS White Paper*                     that it was prepared to enter into an agreement with a new not-for-profit corporation formed by private sector Internet stakeholders. Private sector interests, in turn, formed the Internet Corporation for Assigned Names and Numbers (ICANN) for this purpose.3                     In the fall of 1998, the Department of Commerce entered into a Memorandum of Understanding (MOU) with ICANN, a California not-for-profit corporation, to transition technical DNS coordination and management functions to the private sector.4                     The MOU does not give the Department of Commerce the ability to exercise oversight in the traditional context of regulation and the Department of Commerce plays no role in the internal governance or day-to-day operations of ICANN.                

                    Since 1998, the MOU evolved through several iterations and revisions as ICANN tested these principles with the community, learned valuable lessons, and matured as an organization. Amendments occurred in 1999, 2000, 2001, and 2002. In 2003, the Department of Commerce noted the progress that ICANN had made since its inception. Accordingly, the Department of Commerce and ICANN collaboratively established more specific milestones to further assist ICANN in meeting the objectives of the DNS Project. Both the Department of Commerce and ICANN recognized at this stage that “much work remained for ICANN to evolve into an independent, stable, and sustainable DNS management organization,” and the agreement was further amended (through September 30, 2006) to allow sufficient time for ICANN to meet these milestones' objectives.5

                    On May 23, 2006, NTIA issued a Notice of Inquiry (NOI) and announced a public consultation on the Continued Transition of the Technical Coordination and Management of the Internet DNS.6                     The public consultation resulted in over 700 contributions from individuals, private corporations, trade associations, non-governmental entities, and governments. The consultation evidenced broad support for both continuing the transition and the ongoing involvement of the Department of Commerce. On September 29, 2006, the Department of Commerce and ICANN signed a JPA extending the MOU.7                     The JPA expires September 30, 2009.8

                    The JPA called for a midpoint review of ICANN's progress towards becoming an organization with greater transparency and accountability in its procedures and decision making. NTIA conducted this review by releasing an NOI on November 2, 2007, and conducting a public meeting on February 28, 2008.9                     This review process revealed that, while some progress had been made, there remained key areas where further work was required to increase institutional confidence in ICANN.10                     Specifically, these included long-term stability, accountability, responsiveness, continued private sector leadership, stakeholder participation, increased contract compliance, and enhanced competition. ICANN has stated publicly on several occasions since this midpoint review, most recently on March 2, 2009, that the JPA will conclude September 30, 2009.11

## REQUEST FOR COMMENT:

Given the upcoming expiration of the current JPA between the Department of Commerce and ICANN, NTIA seeks comments regarding the progress of the transition of the technical coordination and management of the Internet DNS to the private sector, as well as the model of private sector leadership and bottom-up policy development which ICANN represents.

The questions below are intended to assist in identifying the issues and should not be construed as a limitation on comments that may be submitted. Comments that contain references, studies, research, and other empirical data that are not widely published should include copies of the referenced materials with the submitted comments.

                    1. The                     *DNS White Paper*                     articulated four principles (i.e., stability; competition; private, bottom-up coordination; and representation) necessary for guiding the transition to private sector management of the DNS. Are these still the appropriate principles? If so, have these core principles been effectively integrated into ICANN's existing processes and structures?                

2. The goal of the JPA process has been to transition the coordination of DNS responsibilities, previously performed by the U.S. Government or on behalf of the U.S. Government, to the private sector so as to enable industry leadership and bottom-up policy making. Is this still the most appropriate model to increase competition and facilitate international participation in the coordination and management of the DNS, bearing in mind the need to maintain the security and stability of the DNS? If yes, are the processes and structures currently in place at ICANN sufficient to enable industry leadership and bottom-up policy making? If not, what is the most appropriate model, keeping in mind the need to ensure the stability and security of the Internet DNS?

3. The original agreement and the first six amendments to the JPA contained a series of core tasks, and in some cases, date-specific milestones. Have these tasks been accomplished and have these milestones been met? If not, what remains and what steps should be taken to successfully address them?

                    4. In 2006, the focus on specific milestones was adjusted to a series of                           ( print page 18690)                        broad commitments endorsed by the ICANN Board as an annex to the JPA. Specifically, ICANN committed to take action on the responsibilities set out in the Affirmation of Responsibilities established in ICANN Board Resolution 06.71, dated September 25, 2006.12                     Those responsibilities included activities in the following categories: security and stability, transparency, accountability, root server security and relationships, TLD management, multi-stakeholder model, role of governments, IP addressing, corporate responsibility, and corporate administrative structure. What steps has ICANN taken to meet each of these responsibilities? Have these steps been successful? If not, what more could be done to meet the needs of the community served in these areas?                

5. The current JPA called for NTIA to conduct a mid-term review. That review revealed that ICANN needed to take further steps to increase institutional confidence related to long-term stability, accountability, responsiveness, continued private sector leadership, stakeholder participation, increased contract compliance, and enhanced competition. What steps has ICANN taken to address the concerns expressed in the mid-term review process? Have these steps been successful? If not, what more could be done to meet the needs of the community served in these areas?

6. The JPA between the Department of Commerce and ICANN is an agreement by mutual consent to effectuate the transition of the technical coordination and management of the Internet DNS in a manner that ensures the continued stability and security of the Internet DNS. Has sufficient progress been achieved for the transition to take place by September 30, 2009? If not, what should be done? What criteria should be used to make that determination?

7. Given the upcoming expiration of the JPA, are there sufficient safeguards in place to ensure the continued security and stability of the Internet DNS, private sector leadership, and that all stakeholder interests are adequately taken into account? If yes, what are they? Are these safeguards mature and robust enough to ensure protection of stakeholder interests and the model itself in the future? If no, what additional safeguards should be put in place?

8. The JPA provides that before its termination, NTIA and ICANN are to collaborate on a DNS Project Report that will document ICANN's policies and procedures designed and developed pursuant to the agreement. What should be included in this report?

## EX PARTE COMMUNICATIONS:

                    Any oral presentation to NTIA regarding the substance of this proceeding will be considered an                     *ex parte*                     presentation, and the substance of the meeting will be placed on the public record and become a part of this docket. No later than two (2) business days after an oral presentation or meeting, an interested party must submit a memorandum to NTIA, which summarizes the substance of the communication. Any written presentations provided in support of the oral communication or meeting will also be placed on the public record and become a part of this docket. Such                     *ex parte*                     communications must be submitted to DNSTransition@ntia.doc.gov in one of the above listed formats and clearly labeled as an                     *ex parte*                     presentation. All                     *ex parte*                     documents will be posted at http://www.ntia.doc.gov/​comments/​2009/​dnstransition.                

Dated: April 20, 2009.

Anna M. Gomez,

Acting Assistant Secretary for Communications and Information Administration.

# Footnotes

1.                             Memorandum on Electronic Commerce, 2 Pub. Papers 898 (July 1, 1997).                    
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2.                             Management of Internet Names and Addresses, 63 Fed. Reg. 31,741 (June 10, 1998).                    
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3.                             For more information on the private sector proposals received                         *see*http://www.ntia.doc.gov/​ntiahome/​domainname/​background.htm.                    
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4.                             Memorandum of Understanding Between the U.S. Department of Commerce and the Internet Corporation for Assigned Names and Numbers (Nov. 25, 1998), http://www.ntia.doc.gov/​ntiahome/​domainname/​icann-memorandum.htm.                    
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5.                             Department of Commerce Statement Regarding Extension of Memorandum of Understanding with the Internet Corporation for Assigned Names and Numbers (Sept. 16, 2003), http://www.ntia.doc.gov/​ntiahome/​domainname/​agreements/​sepstatement_​09162003.htm.                    
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6.                             Notice of Inquiry and Public Meeting on the Continued Transition of the Technical Coordination and Management of the Internet DNS (Nov. 1, 2007), http://www.ntia.doc.gov/​ntiahome/​domainname/​jpamidtermreview.html.                    
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7.                             All MOU Amendments are available online at http://www.ntia.doc.gov/​ntiahome/​domainname/​icann.htm.                    
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8.                             Joint Project Agreement Between the U.S. Department of Commerce and the Internet Corporation for Assigned Names and Numbers, Amendment 7, http://www.ntia.doc.gov/​ntiahome/​domainname/​agreements/​jpa/​ICANNJPA_​09292006.htm.                    
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9.                             Notice of Inquiry and comments received are available online at http://www.ntia.doc.gov/​ntiahome/​domainname/​jpamidtermreview.html.                    
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10.                             NTIA Statement on the Mid-Term Review of the Joint Project Agreement (JPA) Between NTIA and ICANN, http://www.ntia.doc.gov/​ntiahome/​domainname/​ICANN_​JPA_​080402.html.                    
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11.                                                     *See e.g.*, Paul Twomey, CEO and President, ICANN, Statement Given at the Welcome Ceremony, 34th ICANN Conference, Mexico City, (Mar. 2, 2009), http://mex.icann.org/​files/​meetings/​mexico2009/​transcript-opening-ceremony-02mar09-en.txt; Internet Corporation for Assigned Names and Numbers, 2008 Annual Report (Dec. 31, 2008), at 21, http://www.icann.org/​en/​annualreport/​annual-report-2008-en.pdf.                    
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12.                             Joint Project Agreement Between the U.S. Department of Commerce and the Internet Corporation for Assigned Names and Numbers, Amendment 7, http://www.ntia.doc.gov/​ntiahome/​domainname/​agreements/​jpa/​ICANNJPA_​09292006.htm.                    
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[FR Doc. E9-9409 Filed 4-23-09; 8:45 am]

BILLING CODE 3510-60-S