LAST CALL for Recommended Draft Policy ARIN-2015-5: Out of region use

[ARIN]

The ARIN Advisory Council (AC) met on 18 February 2016 and decided to
send the following to last call:

   Recommended Draft Policy ARIN-2015-5: Out of region use

Feedback is encouraged during the last call period. All comments should
be provided to the Public Policy Mailing List. This last call will
expire on 9 March 2016. After last call the AC will conduct their
last call review.

The draft policy text is below and available at:
https://www.arin.net/policy/proposals/

The ARIN Policy Development Process is available at:
https://www.arin.net/policy/pdp.html

Regards,

Communications and Member Services
American Registry for Internet Numbers (ARIN)


## * ##


Recommended Draft Policy ARIN-2015-5
Out of region use

AC's assessment of conformance with the Principles of Internet Number 
Resource Policy:

ARIN-2015-5 enables fair and impartial number resource administration by 
allowing any ARIN Organization with a real and substantial connection to 
the ARIN region to use number resources out of region without prejudice. 
This proposal is technically sound, as it addresses the key concerns 
related to the unlimited openness of out of region use and enables ARIN 
staff to implement the policy efficiently. The policy received a 
unanimous show of support at the ARIN PPM in Montreal as well as the PPC 
in San Diego.

Problem statement:

Current policy neither clearly forbids nor clearly permits out of region 
use of ARIN registered resources. This has created confusion and 
controversy within the ARIN community for some time. Earlier work on 
this issue has explored several options to restrict or otherwise limit 
out of region use or loosen controls and totally authorize such use. 
None of these options have gained consensus within the community. The 
next logical option is a proposal that clearly permits out of region use 
while addressing the key concerns expressed about unlimited openness to 
out of region use and enables ARIN staff to implement the policy 
efficiently.

Policy statement:

Create new Section X:

ARIN registered resources may be used outside the ARIN service region. 
Out of region use of ARIN registered resources are valid justification 
for additional number resources, provided that the applicant has a real 
and substantial connection with the ARIN region which applicant must 
prove (as described below) and is using the same type of resources (with 
a delegation lineage back to an ARIN allocation or assignment) within 
the ARIN service region as follows:

* IPv4: At least a /22 used in region
* IPv6: At least a /44 used in region
* ASN: At least one ASN present on one or more peering sessions and/or 
routers within the region.

A real and substantial connection shall be defined as carrying on 
business in the ARIN region in a meaningful manner. The determination as 
to whether an entity is carrying on business in the ARIN region in a 
meaningful manner shall be made by ARIN. Simply being incorporated in 
the ARIN region shall not be sufficient, on its own, to prove that an 
entity is carrying on business in the ARIN region in a meaningful 
manner. Methods that entities may consider using, including 
cumulatively, to prove that they are carrying on business in the ARIN 
region in a meaningful manner include:
* Demonstrating a physical presence in the ARIN region through a bricks 
and mortar location that is actually used for the purposes of conducting 
business in the ARIN region in a meaningful manner. That is to say, the 
location is not merely a registered office that serves no other business 
purpose.
* Demonstrating that the entity has staff in the ARIN region. The 
greater the number of staff, the stronger this connecting factor is.
* Demonstrating that the entity holds assets in the ARIN region. The 
greater the asset value, the stronger this connecting factor is.
* Demonstrating that the entity provides services to and solicits sales 
from residents of the ARIN region.
* Demonstrating that the entity holds periodic meetings in the ARIN region.
* Demonstrating that the entity raises investment capital from investors 
in the ARIN region.
* Demonstrating that the entity has a registered corporation in the ARIN 
region, although this factor on its own shall not be sufficient.
* Other fact based criterion that the entity considers appropriate and 
submits for ARIN's review.
The weight accorded to any of the above-noted factors, if any, shall be 
determined solely by ARIN.

The services and facilities used to justify the need for ARIN resources 
that will be used out of region cannot also be used to justify resource 
requests from another RIR. When a request for resources from ARIN is 
justified by need located within another RIR's service region, an 
officer of the application must attest that the same services and 
facilities have not been used as the basis for a resource request in the 
other region(s). ARIN reserves the right to obtain from the applicant a 
listing of all the applicant's number holdings in the region(s) of 
proposed use, when there are factual reasons to support the request.

Comments:

a) Timetable for implementation: Various iterations of this policy have 
been presented and debated by ARIN for well over a year now. Given the 
amount of time that has already been spent on developing a policy, 
ideally, this policy would be implemented as soon as possible.
b) Explanation of draft policy: The draft policy addresses both the 
problem statement as well as the concerns raised at ARIN 35 by 
participants as well as ARIN counsel.
Firstly, the draft policy addresses the concerns of ARIN counsel as well 
as some of the participants at ARIN 35 by ensuring that anyone 
requesting numbered resources from ARIN has a real and substantial 
connection with the ARIN region. This should go a long way to addressing 
concerns about fraud, legal liability, and interference with the 
jurisdiction of other RIRs.
In addition, by placing the burden of proof for demonstrating a real and 
substantial connection with the ARIN region on the applicant, the amount 
of work required of ARIN staff to apply the policy will be reduced.
The factors noted above are suggestions that an entity may use to 
demonstrate to ARIN that it is carrying on business in the ARIN region 
in a meaningful manner. These factors are all indicative, some more than 
others, that an entity has a real and substantial connection to the ARIN 
region through the carrying on of business in the ARIN region in a 
meaningful manner. Not all of the factors will apply in a given case and 
proving a single factor may not be enough to satisfy ARIN that an entity 
is carrying on business in the region in a meaningful manner. The list 
of factors is meant to be quite broad, including an open-ended factor, 
in order to capture the diversity of businesses that operate in the ARIN 
region and that may justifiably require numbered resources from ARIN. 
This approach is very similar to the practical method that courts 
typically apply to assess whether parties have a sufficient connection 
to a jurisdiction so as to require them to submit themselves to the 
courts of that jurisdiction.

This draft policy is a substantial improvement over the previous version 
of ARIN-2014-1 in terms of reducing the overall risk to the community by 
requiring a real and substantial connection between an entity requesting 
resources and the ARIN region.

#####

ARIN STAFF & LEGAL ASSESSMENT
Draft Policy ARIN-2015-5
OUT OF REGION USE


Date of Assessment: 17 September 2015

___
1. Summary (Staff Understanding)

This proposal would allow an organization to receive Internet number 
resources from ARIN for use out of region as long as the applicant is 
currently using at least the equivalent of a /22 of IPv4, /44 of IPv6, 
or 1 ASN within the ARIN service region, respectively. In addition, the 
applicant must have a real and substantial connection with the ARIN 
region, which the applicant shall be responsible for proving.

___
2. Comments

A. ARIN Staff Comments

This policy would increase the complexity of ARIN staff review work in 
request cases that fit the profile of this policy. There would in an 
increase in the vetting and utilization verification work currently 
conducted by ARIN staff.

This policy would be placed in the NRPM as section 9, "Out of Region Use".

B. ARIN General Counsel – Legal Assessment

If the policy is enacted it will require ARIN staff to work with counsel 
with some attendant increase in costs in the first year to manage 
implementation. The policy is consistent with standard legal principles 
routinely utilized in the ARIN region. The policy creates no material 
legal risks.

___
3. Resource Impact

 From a request review standpoint, implementation of this policy would 
require additional review steps for Internet number resource requests. 
It could have future staffing implications based on the amount of 
additional work the policy could present. It is estimated that 
implementation could occur within 3 months after ratification by the 
ARIN Board of Trustees. The following would be needed in order to implement:

* Updated guidelines and internal procedures
* Staff training

Implementation of this policy may allow for registrations in the ARIN 
database that require unicode character sets. From an engineering 
standpoint, implementation of this policy could have a major resource 
impact. It is estimated that implementation would occur within 12 
months, instead of the 3 months cited above, after ratification by the 
ARIN Board of Trustees if ARIN is required to support unicode character 
sets. The following would be needed in order to implement:

* Engineering: Engineering efforts to handle out of region business 
rules may be substantial as our system only supports ascii now. If there 
is a need for unicode character sets, then there is a substantial amount 
of work required to upgrade the DB and applications to support unicode. 
Additionally, we would need to discuss how to display unicode characters 
in port 43 whois.