[arin-ppml] 2016-9 Streamline Merger & Acquisition Transfers - Text modifications

[Larry Ash]

I also support.

  John Springer <3johnl at gmail.com> wrote:
> Greetings PPML,
> 
> After discussions between the author, shepherds and the AC, the text of
> ARIN Draft Policy 2016-9, Streamline Merger & Acquisition Transfers has
> been modified for clarity.
> 
> Please reply with thoughts and feedback. They will be very welcome.
> Thank you in advance.
> 
> New text:
> 
> Problem Statement:
> In the case of a merger or acquisition, current policy encourages not
> updating registration data, thus leaving the number resource in the name of
> a now defunct entity.
> It is not uncommon for an entity which has bought another entity (with
> existing number resources) to leave Organizational data (Whois) in the name
> of the acquired company. The requirements in Section 8.2 put a
> justification burden on the acquiring organization, which was a legitimate
> protection while free pool assignments were available. It is worth
> revisiting Section 8.2 and looking for opportunities to simplify the policy
> in the interest of improving the registry data.
> Consider the following:
> 1. In the case where both organizations (acquirer, acquired) have justified
> their existing number resources from an issuer (e.g. SRI-NIC, GSI, ARIN)
> under the policies that were in force at the time of issuance, the number
> resources have already been justified once.
> 2. ARIN does not customarily require organizations holding address space to
> document utilization except when they are asking ARIN to issue more space.
> 3. Section 8.2 M&A is not asking ARIN to issue more space or provide
> authorization to acquire space in an 8.3 transfer. It is simply updating
> ARIN's database to reflect the current reality, that being that control of
> a company has changed.
> Language that speaks of required return or transfer of space is of
> questionable enforceability in the context of the current RSA (section 6,
> "ARIN has no right to revoke any Included Number Resources under this
> Agreement due to lack of utilization by Holder").
> Clauses that serve to scare organizations away from updating their
> information are counter to the goal of good data in whois.
> Policy should allow ARIN staff to concentrate finite resources on
> ascertaining corporate chain of custody so as to minimize the chance of
> fraudulent transfers rather than auditing space already issued.
> Policy statement:
> Delete the bullet point that reads:
>For mergers and acquisition transfers, the recipient entity must provide
> evidence that they have acquired assets that use the resources to be
> transferred from the current registrant. ARIN will maintain an up-to-date
> list of acceptable types of documentation.
> Add this conditional to the bottom of 8.2 for linguistic clarity:
> "AND one or more of the following:
> The recipient must provide independently verifiable evidence that they have
> acquired the assets that use the resources to be transferred from the
> current registrant.
> OR
> The recipient must show that they have acquired the entire corporate entity
> which is the current registrant."
> Remove the following paragraph from Section 8.2 of the NRPM:
> ARIN will proceed with processing transfer requests even if the number
> resources of the combined organizations exceed what can be justified under
> current ARIN policy. In that event, ARIN will work with the resource
> holder(s) to transfer the extra number resources to other organization(s)
> or accept a voluntary return of the extra number resources to ARIN.
> These two changes will leave Section 8.2 looking like this:
> 8.2. Mergers and Acquisitions
> ARIN will consider requests for the transfer of number resources in the
> case of mergers, acquisitions, and reorganizations under the following
> conditions:
> The current registrant must not be involved in any dispute as to the status
> of the resources to be transferred.
> The new entity must sign an RSA covering all resources to be transferred.
> The resources to be transferred will be subject to ARIN policies.
> The minimum transfer size is the smaller of the original allocation size or
> the applicable minimum allocation size in current policy.
> AND one or more of the following:
> The recipient must provide independently verifiable evidence that they have
> acquired the assets that use the resources to be transferred from the
> current registrant.
> OR
> The recipient must show that they have acquired the entire corporate entity
> which is the current registrant.
> Timetable for implementation: Immediate
> 
> Old text:
> 
> Problem Statement:
> It is not uncommon for an entity which has bought another entity (with
> existing number resources) to leave Organizational data (Whois) in the name
> of the acquired company. The requirements in Section 8.2 put a
> justification burden on the acquiring organization, which was a legitimate
> protection while free pool assignments were available. It is worth
> revisiting Section 8.2 and looking for opportunities to simplify the policy
> in the interest of improving the registry data.
> Consider the following:
> 1. Both organizations (acquirer, acquired) have justified their existing
> number resources from an issuer (e.g. SRI-NIC, GSI, ARIN) under the
> policies that were in force at the time of issuance. In short, the number
> resources have already been justified once.
> 2. ARIN does not customarily require organizations holding address space to
> document utilization except when they are asking ARIN to issue more space.
> 3. Section 8.2 M&A is not asking ARIN to issue more space or provide
> authorization to acquire space in an 8.3 transfer. It is simply updating
> ARIN's database to reflect the current reality, that being that control of
> a company has changed.
> Language that speaks of required return or transfer of space is of
> questionable enforceability in the context of the current RSA (section 6,
> "ARIN has no right to revoke any Included Number Resources under this
> Agreement due to lack of utilization by Holder").
> Clauses that serve to scare organizations away from updating their
> information are counter to the goal of good data in whois.
> Policy should allow ARIN staff to concentrate finite resources on
> ascertaining corporate chain of custody so as to minimize the chance of
> fraudulent transfers rather than auditing space already issued.
> This proposal suggests two changes: a paragraph change to better reflect
> current practice, harmonize nomenclature with 8.3 ("new entity" vs
> "recipient") and remove an operationally-focused sentence, and a paragraph
> removal as it is the author's opinion that this paragraph has outlived its
> usefulness.
> Policy statement:
> Replace the following paragraph:
>For mergers and acquisition transfers, the recipient entity must provide
> evidence that they have acquired assets that use the resources to be
> transferred from the current registrant. ARIN will maintain an up-to-date
> list of acceptable types of documentation.
> with this conditional, moving it to the bottom of 8.2 for linguistic
> clarity:
> AND one or more of the following:
> The recipient must provide independently verifiable evidence that they have
> acquired the assets that use the resources to be transferred from the
> current registrant.
> OR
> The recipient must show that they have acquired the entire corporate entity
> which is the current registrant.
> Remove the following paragraph from Section 8.2 of the NRPM:
> In the event that number resources of the combined organizations are no
> longer justified under ARIN policy at the time ARIN becomes aware of the
> transaction, through a transfer request or otherwise, ARIN will work with
> the resource holder(s) to return or transfer resources as needed to restore
> compliance via the processes outlined in current ARIN policy.
> These two changes will leave Section 8.2 looking like this:
> 8.2. Mergers and Acquisitions
> ARIN will consider requests for the transfer of number resources in the
> case of mergers, acquisitions, and reorganizations under the following
> conditions:
> The current registrant must not be involved in any dispute as to the status
> of the resources to be transferred.
> The new entity must sign an RSA covering all resources to be transferred.
> The resources to be transferred will be subject to ARIN policies.
> The minimum transfer size is the smaller of the original allocation size or
> the applicable minimum allocation size in current policy.
> AND one or more of the following:
> The recipient must provide independently verifiable evidence that they have
> acquired the assets that use the resources to be transferred from the
> current registrant.
> OR
> The recipient must show that they have acquired the entire corporate entity
> which is the current registrant.
> Timetable for implementation: Immediate
> 
> regards
> 
> John Springer
> ARIN AC member and shepherd of 2016-9

Larry Ash
Network Administrator
Mountain West Telephone
123 W 1st St.
Casper, WY 82601
Office 307 233-8387