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Internet Corporation for Assigned Names and Numbers

INTERNET CORPORATION FOR ASSIGNED NAMES AND NUMBERS
DRAFT MINUTES OF MEETING
May 27, 1999
Posted June 17, 1999

A meeting of the Board of Directors of the Internet Corporation for Assigned Names and Numbers (the "Corporation") was held at 8:45 a.m. local time at the Adlon Hotel in Berlin, Germany, on May 27, 1999. All of the initial Directors of the Corporation were present: Geraldine Capdeboscq, George H. Conrades, Gregory L. Crew, Esther Dyson, Frank Fitzsimmons, Hans Kraaijenbrink, Jun Murai, Michael Roberts, Eugenio Triana, and Linda Wilson. Also present at the meeting were Joe Sims, Mike Weinberg, and Louis Touton of Jones, Day, Reavis & Pogue; and Andrew McLaughlin, Molly Shaffer Van Houweling, and Ann Marie Plubell of the Internet Corporation for Assigned Names and Numbers. Molly Shaffer Van Houweling acted as secretary for the meeting.

The meeting was called to order by Esther Dyson. Michael Roberts opened the meeting by reviewing the agenda.  

TRANSITION STATUS REPORT

Counsel gave a report on ICANN's transition process under its Memorandum of Understanding with the U.S. Department of Commerce and reported that the Corporation is approximately halfway through its transition tasks.

DOMAIN NAME SUPPORTING ORGANIZATION CONSTITUENCY RECOGNITION

Staff then summarized the proposals (and related commentary) received for Domain Name Supporting Organization (DNSO) Constituencies. Changes made in the proposals as a result of organizational Constituency meetings held in Berlin on May 25 were noted, and in particular, that proposals for the Intellectual Property and ISP and Connectivity Providers Constituencies had been modified to broaden participation. Possible outstanding problems with the Constituency proposals were highlighted, including: limited participation in the organization process, uncertainty regarding compliance with the geographic diversity requirements in the ICANN Bylaws, and overly discretionary participation criteria. It was noted that the various organizers of the Non-Commercial Domain Name Holders Constituency had come close to reaching a compromise, but that they had not yet settled on a plan setting out the process for selection of Names Council members.

Finally, on a related matter, staff reported that ICANN had solicited public comments on the question of whether "initial DNSO Constituencies currently identified as 'ccTLD registries' and 'gTLD registries' be re-categorized as 'open registries' and 'closed registries,' identified according to whether the registry is open to any registrant, worldwide ('open'), or is instead limited to certain registrants based on geography, intended use, or other criteria ('closed')," and that the response had been largely negative; therefore, the staff did not recommend taking any action on the matter at this time.

The Board discussed the possibility of provisional recognition of all of the Constituencies except for the Non-Commercial Domain Name Holders (based on proposals attached hereto as Exhibit A) for a limited period of time in which the Constituencies could operate on an interim basis, while making improvements in their structures. In particular, the Directors emphasized the importance of conducting Constituency outreach to potential participants; articulating clear statements of Constituency participation criteria; solidifying specific plans for compliance with geographic representation requirements; and conforming Constituency Names Council representative voting and related plans to the provisional period timeline. The Board also discussed possible solutions to the specific problems regarding the gTLD Constituency, the Non-Commercial Domain Name Holders Constituency, and the geographic diversity requirements for Constituencies.

Upon motion duly made and seconded, the Board unanimously approved the adoption of the following resolutions:

RESOLVED (Resolution 99.31), that the following Constituencies (as defined in Article VI-B of the Bylaws) are provisionally recognized until the annual meeting of the Board in 1999, to operate in accordance with the proposals received by the Corporation and ordered attached to these minutes:

• ccTLD registries

• Commercial and business entities

• gTLD registries

• Intellectual property

• ISPs and connectivity providers

• Registrars

FURTHER RESOLVED (Resolution 99.32), that the President of the Corporation is directed to work with the Constituencies to amend their proposals to address deficiencies noted by the Board, which amended proposals must include a commitment of the submitting Constituency to hold a new election of Names Council representatives promptly following the approval by the Board of such amended proposal.

FURTHER RESOLVED (Resolution 99.33), that, when such proposals are so amended, the Board should examine such proposals to determine whether the deficiencies have been satisfactorily addressed and whether to extend the recognition today made.

FURTHER RESOLVED (Resolution 99.34), that the Names Council representatives chosen by the provisionally recognized Constituencies shall constitute the provisional Names Council, with all the powers set forth in the Bylaws other than the selection of ICANN Directors (pursuant to Section 2(e) of Article VI-B of the Bylaws), which selection powers will be deferred until such time as the Board determines it has made sufficient final recognitions.

FURTHER RESOLVED (Resolution 99.35), that the Board requests that the Constituency for gTLD registries agree, for so long as Network Solutions is the only participant in such Constituency, to select only one individual (rather than three) to represent that Constituency on the provisional Names Council, and the Board states that if such Constituency does not agree to make only one such selection, the Board will amend the Bylaws to effectuate such goal.

FURTHER RESOLVED (Resolution 99.36), that the phrase "except with the consent of the Board" shall be inserted after the twenty-first word of Section 3(c) of Article VI-B of the Bylaws.

FURTHER RESOLVED (Resolution 99.37), that the Board considers geographic diversity to be an important requirement that should be met promptly, but consents to waiver of the Names Council geographic diversity requirement of Article VI-B(3)(c) of the Bylaws, for the period of provisional recognition only.

FURTHER RESOLVED (Resolution 99.38), the Board determines that no proposal to create a non-commercial domain name holders Constituency has yet been submitted that is appropriate for recognition.

FURTHER RESOLVED (Resolution 99.39), with the recognition that the interests represented by a non-commercial domain name holders Constituency should be involved as early as possible in the DNSO organization process, the Board urges that the organizers of this Constituency should submit a consensus application for provisional recognition as soon as possible, so that the issue of recognition can be reconsidered by the Board no later than an anticipated meeting during the week of June 21 so that representatives of this Constituency can join the provisional Names Council.  

The Directors then discussed whether an additional Constituency for individual domain name holders should be added to the initial seven Constituencies called for in the ICANN Bylaws--an addition supported by some commentators (including some remote, online participants) at the May 26 public meeting. Some Directors expressed concern that some individual domain name holders may not be adequately represented by the Initial Constituencies.

The Board noted that ICANN had announced that no applications for additional constituencies would be considered until the original constituencies it had established in Singapore were constituted. There was also general consensus that whether a DNSO constituency for individuals should be established could be affected by how the At-Large membership was structured and operated. Given this, the Board decided to defer consideration of this proposal until a later date.

EMPLOYMENT MATTERS

The Board next discussed the possibility of engaging a recruiter to search for a permanent CEO, and other staffing issues.

BYLAW CHANGES REGARDING GOVERNMENTAL ADVISORY COMMITTEE

At this point Paul Twomey, Chair of the Governmental Advisory Committee (GAC), joined the meeting and gave a presentation requesting that the ICANN Board amend its Bylaws to ensure that the Membership definitions for the GAC in the Bylaws align with the membership definitions in the GAC's adopted Operating Principles. In particular, he proposed that the membership definition be altered to permit GAC participation by "Distinct Economies as recognized in international fora," and to specify that each GAC Member shall appoint as its accredited representative to the Committee someone who holds a formal official position with the Member's public administration.

Subsequently, upon motion duly made and seconded, the Board unanimously approved the adoption of the following resolution  (Director Capdeboscq being absent):

WHEREAS the Board has received the Operating Principles adopted by the Governmental Advisory Committee (GAC); and

WHEREAS the GAC has requested that the Board conform the applicable Bylaws to the membership criteria established in the Operating Principles;

BE IT RESOLVED (Resolution 99.40) that Article VII, Sec. 3(a) of the Bylaws be amended to replace the third sentence with the following:

"Membership of the Governmental Advisory Committee shall be open to all national governments. Membership shall also be open to Distinct Economies as recognized in international fora, and multinational governmental organizations and treaty organizations, on the invitation of the Governmental Advisory Committee through its Chair, or on invitation of the ICANN Board. Members of the Governmental Advisory Committee shall appoint one accredited representative to the Committee. The accredited representative of a Member must hold a formal official position with the Member's public administration. The term "official" includes a holder of an elected governmental office, or a person who is employed by such government, public authority or multinational governmental or treaty organization and whose primary function with such government, public authority or organization is to develop or influence governmental or public policies." 

A petition submitted to the Board by the International Association of Top Level Domains was then discussed. Dr. Twomey described GAC discussions on the issues raised by the petition and responded to questions regarding these issues.

Dr. Twomey then departed.

WORLD INTELLECTUAL PROPERTY ORGANIZATION RECOMMENDATIONS

Staff summarized the World Intellectual Property Organization's "Final Report of the WIPO Internet Domain Name Process" and the comments that ICANN received on its recommendations. (In advance of the meeting the Directors had an opportunity to consider a full summary of the comments received on the WIPO recommendations, attached as Exhibit B hereto.)

The report was summarized as consisting of three parts: one part recommends registrar practices (such as contact information requirements and pre-payment) to forestall intellectual property disputes; one part recommends a uniform administrative procedure for dispute resolution regarding "abusive registration" of domain names; and one part proposes prerequisites for moving forward with new gTLDs--including a proposed mechanism for excluding registration in new gTLDs of "globally famous or well-known" marks by non-mark owners. Staff noted that a large group of commentators took the position that ICANN should not act on any part of the report, but should instead refer it to the DNSO; another significant group of commentators urged ICANN to act quickly and to adopt as many of the recommendations as possible right away.

The staff noted that ICANN's Registrar Accreditation Agreement already requires most of the registrar practices called for in the first part of the WIPO report. It was also noted that the Agreement calls for registrars to adopt dispute resolution policies, and that accredited registrars are already working together to do so. Counsel noted that Network Solutions' registry-registrar contract also calls for registrars to have dispute resolution policies in place, and that registrars are anxious to have guidance on a uniform policy.

Staff noted that although many commentators expressed support for the concept of a uniform dispute resolution policy, some raised questions about the specific mechanism proposed by WIPO. In particular, concern has been raised about whether domain name holders who lost in the proposed administrative proceeding would have any effective way to challenge the outcome in court. The Directors discussed that the scope of the mechanism recommended by WIPO may be insufficient for registrars, as ICANN's agreement with accredited registrars calls for them to adopt a dispute resolution policy covering SLD-related disputes, not only abusive registrations. The consensus among the Directors was that the Board supported the general concept of uniform dispute resolution for gTLD registrars, but that the details should be referred for further study by the DNSO--under an expedited time-line designed to facilitate adoption of uniform policies by registrars as soon as possible.

Staff noted that the WIPO recommendations regarding an exclusion mechanism for "globally famous or well-known" marks were the most controversial--with several commentators arguing that they would provide mark owners with rights beyond those granted under trademark law. The consensus among the Directors was that this issue also should be considered further by the DNSO.

Upon motion duly made and seconded, the Board then unanimously approved the adoption of the following resolutions (Director Capdeboscq being absent):

WHEREAS, in the White Paper the U.S. Government called on the World Intellectual Property Organization (WIPO) to develop recommendations regarding trademark disputes concerning domain names;

WHEREAS, on April 30, 1999, WIPO submitted a report to the ICANN Board containing numerous recommendations that resulted from an extensive consultative process;

WHEREAS, the first ICANN-accredited registrars (testbed registrars), are preparing to introduce competition in the provision of domain registration services and accordingly are required soon to implement dispute resolution policies;

RESOLVED (Resolution 99.41), the ICANN Board commends the WIPO on its report, which the ICANN Board finds represents a substantial and positive contribution to the analysis and discussion of issues concerning the relationship between the domain-name system and intellectual property rights;

FURTHER RESOLVED (Resolution 99.42), the ICANN Board notes that most of the recommendations in Chapter 2 of the WIPO report relating to best practices for registrars are closely similar to many of the elements of the Statement of Registrar Accreditation Policy adopted by the Board on March 4, 1999 and that the provisions of that policy are scheduled for review by the Board in the first half of 2000;

FURTHER RESOLVED (Resolution 99.43), the ICANN Board endorses the principle that a uniform dispute resolution policy should be adopted for Registrars in the .com, .net, and .org Top-Level Domains (TLDs);

FURTHER RESOLVED (Resolution 99.44), the ICANN Board encourages the testbed registrars to work together to formulate a model dispute resolution policy for voluntary adoption and directs the President to provide information and similar assistance to the testbed registrars in this regard;

FURTHER RESOLVED (Resolution 99.45), the ICANN Board refers the recommendations in Chapter 3 of the WIPO report (with associated annexes) to the ICANN Domain Name Supporting Organization (DNSO) for recommendations the DNSO, to be submitted to the ICANN Board by July 31, 1999;

FURTHER RESOLVED (Resolution 99.46), the ICANN Board requests that by July 31, 1999 the DNSO submit to the Board any other recommendations the DNSO may have concerning a uniform dispute resolution policy for registrars in the .com, .net, and .org TLDs;

FURTHER RESOLVED (Resolution 99.47), the ICANN Board requests all persons desiring to make written comments concerning a uniform dispute resolution policy for registrars in the .com, .net, and .org TLDs to submit those comments by August 20, 1999, in advance of the Board s meeting scheduled for August 24-26, 1999 in Santiago, at which time Board action on such a policy is hereby scheduled; and

FURTHER RESOLVED (Resolution 99.48), the ICANN Board refers the recommendations in Chapters 4 and 5 (with associated annexes) of the WIPO report to the ICANN DNSO for recommendations on the topics of those chapters, to be submitted to the ICANN Board at the earliest practicable time after the Board s meeting scheduled for August 24-26, 1999 in Santiago.

AT-LARGE MEMBERSHIP STRUCTURE

The Board then discussed the Membership Advisory Committee's "Commentary on the Principles of the At-large Membership," (attached as Exhibit C hereto) which was finalized by the Committee members who met in Berlin on May 25. There was a comprehensive discussion of the Commentary, which touched on all aspects of the set of principles advanced. In particular, there was considerable discussion about the size of membership that was necessary or desirable to make the At-Large electorate effective, workable, and representative, and the appropriateness of charging fees to pay for the (likely quite costly) membership and election process, and the need to have a process that could be adjusted if it proved to be unworkable. The consensus of the Board was that it was inappropriate for the costs of the process to be borne by domain name holders or other ICANN constituents that did not participate in the At-Large membership or elections, but there was also concern that membership fees that were too high might have the practical effect of disenfranchising some potential members. The Board directed the staff and counsel to analyze the MAC principles in the light of its discussion, and report back prior to the Santiago meeting, with the goal of moving forward with the creation of an At-Large Membership structure.

Following extensive discussion, and upon motion duly made and seconded, the Board unanimously approved the adoption of the following resolutions (Director Capdeboscq being absent):

WHEREAS, the Board has received and reviewed the Commentary on the Principles of the At-Large Membership from the Membership Advisory Committee;

WHEREAS, the Board recognizes the significant contribution to the discussion and evaluation of the process of establishing the ICANN At-Large Membership made by the MAC, expresses its deep appreciation for the personal sacrifices that effort required, and accepts the retirement of the current members of the MAC;

WHEREAS, the Board has also considered the public comments submitted via the Internet and at the Singapore and Berlin open meetings;

WHEREAS, the Board reaffirms its intention to establish, as soon as practicable, a system that permits individuals to select geographically diverse At-Large Directors, but also recognizes that this effort, given the unique context of a new form of global consensus organization with responsibility for oversight of an important global resource, is likely to be both administratively complex and expensive (especially in relation to ICANN s anticipated budget);

WHEREAS the Board believes that the cost of implementing an At-Large membership and election process should primarily be borne by that membership;

WHEREAS, the Board also reaffirms its intention to implement an At-Large election process that supports the principal responsibility of ICANN, which is to preserve the operational stability of the Internet, and thus to implement any such process over a transitional period that will permit any adjustments to the process determined to be necessary to meet this commitment;

NOW THEREFORE, the Board directs staff to review the MAC Commentary and report back to the Board before the Santiago meeting on the administrative requirements, likely cost, and logistical details of an election process responsive to the MAC Commentary.

AND FURTHER, the Board directs counsel to report to it before the Santiago meeting on the legal implications of an election process responsive to the MAC commentary.

AND FURTHER, the Board directs staff to recommend to the Board a process for repopulating the MAC, so that it can advise the Board on promotion and encouragement of membership and solicitation of sponsorship for outreach programs.  

Following the meeting, Director Geraldine Capdeboscq asked that her agreement with the resolutions regarding membership be noted in the minutes.

INDEPENDENT REVIEW ADVISORY COMMITTEE RECOMMENDATIONS

Staff then reported on the Interim Report and Draft Principles of the Advisory Committee on Independent Review (attached as Exhibit D hereto), an Addendum to the Interim Report (attached as Exhibit E hereto) and public commentary received. The key issue is the power of the independent review panel called for in the recommendation. Since no Committee consensus position could be reached, the Committee proposed three options. In addition to the power to (i) declare whether an action or inaction of the ICANN Board was contrary to the Corporation's Articles of Incorporation and/or Bylaws, (ii) request additional written submissions from the claimant, the Board, the Supporting Organizations, or from other parties, and (iii) recommend that the ICANN Board stay any action or decision until such time as the Board reviews and acts upon the opinions of the IRP, the panel might be empowered to: (a) immediately stay enforcement or execution of the contested decision of the Board; (b) stay enforcement or execution of the contested decision of the Board only if the Board has failed to act on the IRP's determination within 14 days; or (c) require the Board to act on the IRP's determination at its next meeting or within 30 days, whichever is sooner.

Upon motion duly made and seconded, the Board unanimously approved  the adoption of the following resolutions (Directors Wilson and Capdeboscq being absent):

WHEREAS the Board of Directors has received and considered the Interim Report and Draft Principles submitted by the Advisory Committee on Independent Review on May 7, 1999, along with the Addendum to the Interim Report submitted on May 26, 1999; and

WHEREAS the Board has reviewed and considered the public comments submitted via the Internet and at the Berlin open meeting;

BE IT RESOLVED (Resolution 99.49) that the Board (1) accepts the Draft Principles, as amended by the Addendum; (2) states its preference for option (c) to Draft Principle 9 set forth in the Addendum; and (3) requests that the Advisory Committee on Independent Review complete and submit its final report and recommendations by August 10, 1999; and

BE IT FURTHER RESOLVED (Resolution 99.50) that the Board thanks the Advisory Committee on Independent Review for its hard and productive work so far.

DNS ROOT SERVER ISSUES

The Board then received a briefing on the status of the Root Server System Advisory Committee's activities, the proposed formation by the IETF of a Domain Name Server Operations working group, and the need for better coordinated and defined mechanisms for fulfilling the Corporation's obligations concerning the root server system under its November 25, 1998 Memorandum of Understanding/Joint Project Agreement.  Counsel reported on the status of discussions with the U.S. Department of Commerce regarding contractual mechanisms for establishment of a cooperative research project intended to develop, implement, and test improvements to the management of the root server system.

Upon motion duly made and seconded, the Board unanimously approved the adoption of the following resolutions:

WHEREAS, the Corporation's staff and counsel have negotiated with the U.S. Government a Cooperative Research and Development Agreement (CRADA) establishing a joint research and development project concerning Improvements to Management of the Internet Root Server System to be conducted by the Corporation, the U.S. National Institute of Standards and Technology (NIST) and the U.S. National Telecommunications and Information Administration (NTIA);

WHEREAS, a copy of the CRADA has been provided to the Board;

RESOLVED (Resolution 99.51), the Corporation accepts the terms of the CRADA and directs the President to sign it on behalf of the Corporation with such changes as the President may determine;

RESOLVED (Resolution 99.52), the President is directed to prepare appropriate work plans and other proposals to NIST and NTIA detailing the Corporation's proposed activities under the CRADA; and

RESOLVED (Resolution 99.53), the President is authorized to expend funds of the Corporation to purchase equipment and software necessary to perform the activities contemplated under the project.

PROTOCOL SUPPORTING ORGANIZATION

Staff described a proposal for the Protocol Supporting Organization (PSO) submitted on behalf of the IETF POISSON working group (attached hereto as Exhibit F) and reported that standards organizations including IETF, ITU, ETSI, W3C, and others have expressed support for the proposal.

Staff explained that the proposal contemplates a Memorandum of Understanding between standards organizations participating in the PSO and ICANN, and recommended that the President be directed to draft bylaws provisions formally establishing the PSO, to be considered for approval by the Board.

Upon motion duly made and seconded, the Board unanimously approved  the adoption of the following resolution (Directors Wilson and Capdeboscq being absent):

WHEREAS the Board of Directors has received the proposal for a Protocol Supporting Organization submitted on April 23, 1999; and

WHEREAS the community of open, international, voluntary, Internet-related technical standard and technical specification development organizations has expressed its consensus support for the proposal;

BE IT RESOLVED (Resolution 99.54) that the Board accepts the proposal for a Protocol Supporting Organization submitted on April 23, 1999, and authorizes and directs the President to prepare implementing Bylaws, and to sign an appropriate Memorandum of Understanding in cooperation with the proponents of the proposal, subject to ratification by the Board.

1999-2000 ICANN BUDGET

The President reviewed the proposed 1999-2000 Budget (attached hereto as Exhibit G) an initial version of which the Board had reviewed at its March 4 meeting in Singapore.

Upon motion duly made and seconded, the Board unanimously approved the adoption of the following resolutions (Directors Wilson and Capdeboscq being absent):

WHEREAS, the bylaws of the Corporation require that the President shall prepare and submit to the Board a proposed annual budget of the Corporation for the next fiscal year.

WHEREAS, the President has submitted to the Board a proposed budget, which proposed budget is ordered attached to the minutes of this meeting (the "Proposed Budget").

WHEREAS, the Proposed Budget provides for total revenue of $5.9M, total expenditures of $4.2M and total capital equipment purchases, contribution to operating reserve and provision for prior year loss of $1.7M.

WHEREAS, the Board has reviewed the Proposed Budget and has found that the adoption of the proposed budget is in the best interest of the Corporation.

RESOLVED (Resolution 99.55), that the Proposed Budget is hereby adopted as the annual budget of the Corporation for the fiscal year beginning July 1, 1999 (as adopted, the "Budget").

FURTHER RESOLVED (Resolution 99.56), that the President is authorized and directed to implement and carry out the Budget and is directed to inform the Board of material variances from the Budget.

FURTHER RESOLVED (Resolution 99.57), that the President is directed to cause the Budget to be published on the Corporation's Web Site.

PAYMENT RATIFICATION

The President described checks that he had signed and delivered that required Board approval.

Upon motion duly made and seconded, the Board unanimously approved the adoption of the following resolution (Directors Wilson, Capdeboscq, and Triana being absent):

RESOLVED (Resolution 99.58), that five checks in excess of $10,000 signed and delivered by Michael Roberts on behalf of the Corporation and described by Mr. Roberts to the Board are hereby ratified and approved.

DISBURSEMENTS

The President then explained the need to authorize members of the ICANN staff based in the main Los Angeles ICANN office to sign checks for day-to-day expenses.

Upon motion duly made and seconded, the Board unanimously approved the adoption of the following resolution (Directors Wilson, Capdeboscq, and Triana being absent):

RESOLVED (Resolution 99.59), that Michael Roberts, Josh Elliott and Suzanne Woolf, and each one of them, may authorize disbursements of the Corporation's funds, and sign checks of the Corporation, in amounts of $5,000 or less, and Josh Elliott and Suzanne Woolf, and each of them, may authorize disbursements of the Corporation's funds, and sign checks of the Corporation, in amounts of more than $5,000 and less than $50,000 with the written approval of the President of the Corporation (presently Michael Roberts), which written approval in the case of a check shall be indicated by the of signature of the President on the check. In the event that a disbursement of $50,000 or more is needed, the approval of the Board or the Executive Committee shall be required.

DEPARTURE OF MOLLY SHAFFER VAN HOUWELING

The Board next discussed the fact that Molly Shaffer Van Houweling will soon be leaving the Corporation. The Board unanimously adopted the following resolution:

WHEREAS, Molly Shaffer Van Houweling has served with great distinction as Senior Advisor to the President and the Board of Directors of the Internet Corporation for Assigned Names and Numbers from November, 1998, through June, 1999;

WHEREAS, Ms. Shaffer Van Houweling has exhibited remarkable tenacity in endeavoring to include all points of view of the Internet community in her work for ICANN;

WHEREAS, our friend and colleague Molly will be sorely missed;

NOW THEREFORE, the Board of Directors of ICANN extends to Molly Shaffer Van Houweling its greatest appreciation for her work on our behalf and its best wishes for further success in her professional career.

FUTURE MEETINGS

The Directors next discussed future meetings of the Board of Directors, including the next in-person meeting tentatively scheduled for Santiago, Chile, August 24-26.

The meeting was adjourned at 4:00 pm Berlin time.

_________________________

Molly Shaffer Van Houweling
Interim Secretary