[arin-ppml] New Policy Proposal v2 - Revisions to M&A Transfer Requirements under 8.2

[David Farmer]

Thanks for doing this;

A few things inline;

On 6/14/12 18:26 CDT, Lindsey, Marc wrote:
> *Policy Proposal Name*– Revisions to M&A Transfer Requirements
>
> *Proposal Originator*– Marc Lindsey
>
> *Proposal Version*- 2
>
> *Date*– June 14, 2012
>
> *Policy type*– Modification to existing policy
>
> *Policy term*- Permanent
>
> *Policy Statement*
>
>
>         Delete sections 8.1. and 8.2 in their entirety and replace them
>         with the following:
>
> *8.1 Principles *
>
> ARIN will not change its WHOIS database to record the transfer of number
> resources between organizations unless such transfer complies with this
> Section 8. ARIN is tasked with making prudent decisions when evaluating
> registration transfer requests.

I don't think we want to eliminate all of the Principles in the current 
8.1 that you did; for example clarifying that just because someone is 
listed as a POC doesn't mean that they have the authority to transfer 
resource is probably a good idea.  However, eliminating the current 
reference to the RSA might be a good idea given the intent of this 
policy.  So could I suggest you review the current principles and add at 
least some of them back in, even if you rewrite some of them.  Also, I'm 
not sure if it should be "WHOIS database" or "Directory Service" from a 
policy perspective.

Also, this is the place for ideas like "binding written agreement" and 
"written consent of the resource holder" if you feel the need, and not 
in the definition of Legacy Resource.

>         8.2. Mergers and Acquisitions
>
> When the transfer of any number resource is requested by the current
> registrant or its successor or assign (the “new entity”), ARIN will
> transfer the registration of such number resources to the new entity
> upon receipt of evidence that the new entity has lawfully acquired the
> resources from the current registrant as the result of a merger,
> acquisition, reorganization or name change. ARIN will maintain an
> up-to-date list of acceptable types of documentation.  Transfers under
> this Section 8.2 shall not be contingent upon the new entity’s
> justification of need for the transferred numbers.
>
> If the transfer request pertains to non-legacy number resources, the new
> entity shall be required to execute, in its own name, an RSA covering
> the transferred numbers, and pay the applicable registration fees.
>
> If the transfer request pertains to legacy numbers, the transfer shall
> not be contingent upon the new entity entering into an RSA, LRSA or any
> other form of written agreement with ARIN.  For each transfer of legacy
> numbers under this Section 8.2, ARIN shall assess, and the new entity
> shall pay, a one-time “Legacy Record Change Fee” as set forth in the fee
> schedule /unless/ the new entity elects, in its discretion, to enter
> into an LRSA covering the transferred legacy numbers and pays the
> applicable registration fees.

I understand what your getting at, but generally the word "fee" is taboo 
in ARIN policy.  I need to think about your use of it here, but if you 
can find a way to make it go away, that might be better.  The use of it 
in the second paragraph night be OK.  But specifying  "Legacy Record 
Change Fee" is probably going over the line, but again I understand why 
you are going their and agree with the idea.  I'll think about it more.

> [Note: This proposal incorporates the definition of “legacy number” from
> proposal 172 as revised June 6, 2012.  The amount of the Legacy Record
> Change fee is TBD]
>
> *Rationale *– The current version of 8.2 actually discourages legacy
> holders from (a) updating the WHOIS database, and (b) paying fees to
> assist with records management associated with the WHOIS database.  Some
> entities that currently control resources do not attempt to update the
> WHOIS records because the current transfer process puts at risk their
> ability to retain and use their numbers.  Under the current process,
> legacy holders or their lawful successors must first prove that they are
> the lawful successor (which is necessary and appropriate).  But they
> then must also justify their need to continue using numbers they
> obtained prior to ARIN’s existence.  Once they pass the needs hurdle,
> they must then execute an RSA (not even an LRSA) that alters their
> rights and subjects their numbers to audit and possible revocation under
> then-current policy.
>
> For non-legacy registrants, the process should also be less burdensome
> and uncertain.  Ensuring the continuity of a company’s IP addressing
> scheme as part of an M&A transactions should be within the control of
> the entities directly involved.  ARIN’s discretionary approval of
> transfers in this context introduces an undesirable and unnecessary
> contingency.   Entities concerned about whether their M&A related update
> request will be approved by ARIN simply do not attempt to fully update
> the records.
>
> Minimizing the barriers for both legacy and non-legacy holders to update
> the WHOIS database when changes are required to accurately reflect
> normal corporate reorganization activities will help increase the
> accuracy of the WHOIS database, which benefits the community as a whole.

I agree that the current language regarding evaluation of resources 
creates a significant disincentive for Legacy Holders to properly update 
records through M&A transfers.   And allowing Legacy Holders to maintain 
Legacy status through an M&A transfer provides a proper incentive for 
them to update the records, which is very important.

> *Timetable for implementation*- Immediate

I think this will be useful and might be able to get community consensus.

Thanks

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David Farmer               Email:farmer at umn.edu
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