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NOTICE: NOTICES

ACTION: Employee benefit plans; individual exemptions:

DOCUMENT ACTION: Grant of Individual Exemptions.

SUBJECT CATEGORY: Prohibited Transaction Exemption 2007-17; Grant of Individual Exemptions Involving; D-11390, BSC Services Corp. 401(k) Profit Sharing Plan (the Plan), PTE 2007-17; D-11402 and D-11403, Owens Corning Savings Plan and Owens Corning Savings and Security Plan (Collectively, the Plans), PTE 2007-18; D-11405, Middleburg Trust Company (Middleburg), PTE 2007-19; D-11420, BlackRock, Inc (BlackRock), and Merrill Lynch & Co. (Merrill Lynch) (Collectively, the Applicants), PTE 2007-20; D-11441, Gastroenterology and Oncology Associates, P.A. (the Plan), 2007-21

DOCUMENT SUMMARY: This document contains exemptions issued by the Department of Labor (the Department) from certain of the prohibited transaction restrictions of the Employee Retirement Income Security Act of 1974 (ERISA or the Act) and/or the Internal Revenue Code of 1986 (the Code).

A notice was published in the Federal Register of the pendency before the Department of a proposal to grant such exemption. The notice set forth a summary of facts and representations contained in the application for exemption and referred interested persons to the application for a complete statement of the facts and representations. The application has been available for public inspection at the Department in Washington, DC. The notice also invited interested persons to submit comments on the requested exemption to the Department. In addition the notice stated that any interested person might submit a written request that a public hearing be held (where appropriate). The applicant has represented that it has complied with the requirements of the notification to interested persons. No requests for a hearing were received by the Department. Public comments were received by the Department as described in the granted exemption. [[Page 71438]]

The notice of proposed exemption was issued and the exemption is being granted solely by the Department because, effective December 31, 1978, section 102 of Reorganization Plan No. 4 of 1978, 5 U.S.C. App. 1 (1996), transferred the authority of the Secretary of the Treasury to issue exemptions of the type proposed to the Secretary of Labor. Statutory Findings

In accordance with section 408(a) of the Act and/or section 4975(c)(2) of the Code and the procedures set forth in 29 CFR part 2570, subpart B (55 FR 32836, 32847, August 10, 1990) and based upon the entire record, the Department makes the following findings: (a) The exemption is administratively feasible;
(b) The exemption is in the interests of the plan and its participants and beneficiaries; and
(c) The exemption is protective of the rights of the participants and beneficiaries of the plan.
BSC Services Corp. 401(k) Profit Sharing Plan (the Plan), Located in Philadelphia, PA
[Prohibited Transaction Exemption 200717; Exemption Application No. D 11390]
Exemption

Section ICovered Transactions

The restrictions of sections 406(a), 406(b)(1) and (b)(2) and 407(a) of the Act and the sanctions resulting from the application of section 4975 of the Code,\1\ by reason of section 4975(c)(1)(A) through (E) of the Code, shall not apply, effective April 27, 2006, to (1) the acquisition by the Plan of certain stock rights (the Rights) pursuant to a stock rights offering (the Offering) from First Bank of Delaware (the Bank), a party in interest and the parent company of BSC Services Corp., which is the Plan sponsor as well as a party in interest with respect to the Plan; (2) the holding of the Rights by the Plan during the subscription period of the Offering; and (3) the disposition or exercise of the Rights by the Plan.
\1\ For purposes of this exemption, references to provisions of Title I of the Act, unless otherwise specified, refer also to the corresponding provisions of the Code.

Section IIConditions

This exemption is conditioned upon adherence to the material facts and representations described herein and upon satisfaction of the following conditions:
(a) The Rights were acquired by the Plan pursuant to Plan provisions for the individuallydirected investment of participant accounts.
(b) The Plan's receipt of the Rights occurred in connection with the Rights Offering made available to all shareholders of the Bank's common stock (the Bank Stock).
(c) All decisions regarding the holding and disposition of the Rights by the Plan were made in accordance with Plan provisions for the individuallydirected investment of participant accounts by the individual participants whose accounts in the Plan received Rights in the Offering, and if no instructions were received, the Rights expired. (d) The Plan's acquisition of the Rights resulted from an independent act of the Bank as a corporate entity, and all holders of the Rights, including the Plan, were treated in the same manner with respect to the acquisition, holding and disposition of such Rights. (e) The Plan received the same proportionate number of the Rights as other owners of Bank Stock.

Effective Date: This exemption is effective as of April 27, 2006.

For a more complete statement of the facts and representations supporting the Department's decision to grant this exemption, refer to the notice of proposed exemption published on July 2, 2007 at 72 FR 36059.

SUMMARY: BSC Services Corp. et al.,

FOR FURTHER INFORMATION CONTACT Ms. Jan D. Broady of the Department, telephone number (202) 6938556. (This is not a tollfree number.) Owens Corning Savings Plan and Owens Corning Savings and Security Plan (Collectively, the Plans), Located in Toledo, Ohio
[Prohibited Transaction Exemption 200718; Exemption Application Numbers D11402 and D11403, respectively]

Exemption

The restrictions of sections 406(a), 406(b)(1), 406(b)(2), and 407(a) of the Act and the sanctions resulting from the application of section 4975 of the Code, by reason of section 4975(c)(1)(A) through (E) of the Code, shall not apply, effective October 31, 2006, to: (1) The acquisition by the Plans of certain warrants (the Warrants) issued by Owens Corning (the Applicant), a party in interest with respect to the Plans, where such Warrants have been issued in exchange for the common stock (the Old Common Stock) of the Applicant incident to a bankruptcy reorganization; (2) the holding of the Warrants by each of the Plans pending the exercise or other disposition of said Warrants; (3) the exercise of the Warrants by participants in the Plans to permit acquisition of shares of the Applicant's new common stock (the New Common Stock).

In addition, the restrictions of section 406(a)(1)(A) through (D) of the Act and the sanctions resulting from the application of section 4975 of the Code, by reason of section 4975(c)(1)(A) through (D) of the Code, shall not apply, effective October 31, 2006, to the sale or disposition of the Warrants by participants in the Plans through a brokerdealer acting as an agent on behalf of such participants. Conditions
(a) Other than the right to vote on the Reorganization Plan, the Plans had no ability to affect the provisions of the Sixth Amended Joint Plan of Reorganization for Owens Corning and Its Affiliated Debtors and DebtorsinPossession (the Reorganization Plan) approved by the United States Bankruptcy Court for the District of Delaware (the Bankruptcy Court) on September 26, 2006 pursuant to Chapter 11 of Title 11 of the United States Code (the Bankruptcy Code);
(b) The acquisition and holding of the Warrants by the Plans occurred in connection with the Reorganization Plan, in which all holders of the Applicant's stock of the same class have been and will be treated similarly;
(c) The Warrants were acquired automatically and without any action on the part of the Plans;
(d) The Plans did not pay any fees or commissions in connection with the acquisition or holding of the Warrants;
(e) The Plans will not pay any fees or commissions in connection with the exercise of the Warrants;
(f) All decisions regarding the exercise or other disposition of the Warrants have been and will be made by the individual participants of the Plans in whose accounts the Warrants were allocated, in accordance with the respective provisions of the Plans pertaining to the individuallydirected investment of such accounts, subject to the duty of the fiduciaries of the Plans to take action consistent with sections 403 and 404 of the Act, in the event the current market price for the New Common Stock is below $45.25 per share (the Strike Price) at the time of participant exercise or in the event that it becomes clear that the Warrants would otherwise expire ``in the money'' unexercised by participants; and
(g) The terms and conditions applicable to the sale of the Warrants by participants in the Plans have been and will be at least as favorable to the Plans as those that would have been obtained in an arm's length transaction with an unrelated party.
[[Page 71439]]

Written Comments

The Notice of Proposed Exemption (the Notice), published in the Federal Register on July 2, 2007, stated that the Applicant would distribute the Notice to interested persons within fifteen (15) days of its publication in the Federal Register; the Notice also invited all interested persons to submit written comments and requests for a hearing to the Department concerning the proposed exemption within fortyfive (45) days of the date of its publication.

Shortly after the Notice was published in the Federal Register, the Applicant requested that the Department extend the foregoing deadlines for notification to interested persons. The Department agreed to this request, and advised the Applicant that notification to interested persons be provided no later than August 16, 2007. The Department received a written certification from the Applicant dated August 17, 2007 confirming that the Notice and the accompanying supplemental statement had been distributed to interested persons on August 15, 2007 via first class mail.

During the comment period, the Department received two written comments concerning the Notice. One comment, submitted by a former employee of the Applicant, expressed opposition to the proposed exemption, but did not offer any information or rationale in support of this viewpoint. The second comment received by the Department was submitted by the Applicant. In its comment, the Applicant represented that although it had originally requested exemptive relief from the Department for the acquisition, holding, exercise, and other disposition of the Warrants (including the sale of the Warrants to third parties), the Notice did not contain relief for the disposition of the Warrants.

In this regard, the Applicant also expressed its understanding that securities traded through the Pink Sheets (such as the Warrants) may be sold in the context of either principal transactions (wherein a market maker or broker purchases the security for its own account) or agency transactions (wherein the broker acts as agent for a nonbroker purchaser). In either instance, the commenter stated, it was possible that the purchaser of the Warrants could be a party in interest with respect to the plan. Further, the Applicant commented that neither Part II nor Part IV of PTE 751 (40 FR 50845, October 31, 1975, as amended at 71 FR 5883, February 3, 2006) would provide relief from the restriction of section 406(a) of the Act for an agency transaction involving the Warrants. In this connection, the Applicant expressed the view that it would not be in the interests of the Plans or of the Plans' participants to limit the potential purchasers of the Warrants to market makers or other brokers who could rely on PTE 751. The Applicant also commented that the applicability of section 408(b)(17) of the Act to the transactions described in the proposed exemption was problematic because certain interpretive issues may be raised in applying the adequate consideration condition contained therein, particularly in the case of participantdirected plans and/or securities not traded on an exchange.

The Applicant also commented that Fidelity Brokerage Services, LLC (Fidelity), which is not affiliated with the Applicant, will process the Warrant sales ``in accordance with its customary provisions for the execution of securities transactions in the over the counter [OTC] market and neither [the Applicant] nor any affiliate will have any role in that process.'' Based on the foregoing considerations, the Applicant requested in its comment that the Department modify the proposed exemption by (1) permitting relief from the applicable restrictions of the Act and the Code for the sale or disposition of the Warrants and (2) limiting such relief to those sales transactions that are ``at least as favorable to the Plan as an arms'' length transaction with an unrelated party would be.'' \2\
\2\ On November 22, 2007, the Department received a written communication from the Applicant stating that the New Common Stock became an investment option for participants in the Plans as of November 6, 2007. The Applicant further represented that this development does not affect the rights of participants in the Plans with respect to the Warrants held in their respective accounts (i.e., the participants will continue to have the ability to sell or exercise the Warrants).

In response to the Applicant's request, the Department has determined to grant exemptive relief to the Applicant for the sale or disposition of the Warrants by participants in the Plans provided that such sale or disposition was effected through a brokerdealer acting as an agent on behalf of such participants. In addition, the Department has determined to add a condition (Condition (g)) to the exemption which stipulates that such relief is only available where ``the terms and conditions applicable to the sale of the Warrants by participants in the Plans have been and will be at least as favorable to the Plans as those that would have been obtained in an arm's length transaction with an unrelated party.''

Condition (a) of the proposed exemption (located in the first column on page 36058 of the July 2, 2007 edition of the Federal Register) states that ``[t]he Plans had no ability to affect the provisions of the Sixth Amended Joint Plan of Reorganization for Owens Corning and its Affiliated Debtors and DebtorsinPossession (the Reorganization Plan) approved by the United States Bankruptcy Court for the District of Delaware (the Bankruptcy Court) on September 26, 2006 pursuant to Chapter 11 of Title 11 of the United States Code (the Bankruptcy Code).'' The Applicant suggested that, ``[f]or the purpose of clarity,'' Condition (a) of the proposed exemption should be modified by the Department by inserting the words ``Other than the right to vote on the Reorganization Plan'' at the beginning of the condition. The Department has agreed to adopt the Applicant's request concerning this matter.

Condition (f) of the proposed exemption (located in the second column on page 36058) states that ``[a]ll decisions regarding the exercise or other disposition of the Warrants have been and will be made by the individual participants in the Plans in whose accounts the Warrants were allocated, in accordance with the respective provisions of the Plans pertaining to the individuallydirected investment of such accounts.'' The Applicant suggested in its comment that Condition (f) of the proposed exemption should be modified by the Department to read as follows: ``All decisions regarding the exercise or other disposition of the Warrants have been and will be made by the individual participants of the Plans to whose accounts the Warrants were allocated, subject to the duty of the Plan fiduciaries to take action with respect to the employer securities held by the Plans pursuant to sections 403 and 404 of ERISA, and the right of the Plan sponsor to amend the Plans.'' The Applicant commented that such a revision is necessary to confirm that the relief provided by the exemption would still be available even if the fiduciaries of the Plans were required to exercise their fiduciary duty with respect to the Warrants (as noted by the Department in footnote 10 of the proposed exemption, located at the bottom of page 36059, which states that ``[t]he Applicant acknowledges that the appropriate fiduciaries of the Plans shall be responsible for monitoring the investment options available to participants in the Plans, and taking such action as they deem appropriate under the circumstances.'' Such action
[[Page 71440]]
may include preventing participants from exercising the Warrants if the current market price for the Common Stock is below the Strike Price, or causing the Plans to sell the Warrants in the event that it becomes clear that they would otherwise expire unexercised by participants.

After due consideration of this comment, the Department has decided to modify the text of Condition (f) of the exemption to read as follows: ``All decisions regarding the exercise or other disposition of the Warrants have been and will be made by the individual participants of the Plans in whose accounts the Warrants were allocated, in accordance with the respective provisions of the Plans pertaining to the individuallydirected investment of such accounts, subject to the duty of the fiduciaries of the Plans to take action consistent with sections 403 and 404 of the Act, in the event the current market price for the New Common Stock is below $45.25 per share (the Strike Price) at the time of participant exercise or in the event that it becomes clear that the Warrants would otherwise expire `in the money' unexercised by participants.'' In this regard, the Department notes that no relief is provided under this final exemption for the plan fiduciaries to overrule the direction of participants, unless the direction or lack of direction is clearly imprudent under the particular circumstances.

The Applicant also provided a comment concerning the content of footnote 8 of the Notice (located at the bottom of the first column on page 36059), which states that ``[b]ased on the Applicant's representations, to the extent the Warrants are publicly traded on a national exchange to unrelated third parties, no exemptive relief is being provided by the Department.'' In this regard, the Applicant represented in its comment that the Warrants are not traded on a national exchange. The Department concurs with the Applicant, and hereby deletes footnote 8 in its entirety.

The Applicant also made two additional suggestions for technical revisions to the proposed exemption. In the fifth sentence of the second paragraph of the ``Summary of Facts and Representations'' section of the proposed exemption (located in the second column of page 36058), the following language appears: ``The Reorganization Plan became effective on October 31, 2006, at which time the Old Common Stock was delisted from the New York Stock Exchange and all outstanding shares of the Old Common Stock were cancelled.'' The Applicant has now advised the Department in its comment that the Old Common Stock was delisted some time before October 31, 2006, the date on which it was cancelled. In addition, the Applicant suggested modification of the content of the seventh sentence of the same paragraph (located in the third column of page 36058), which states that ``[t]he Applicant represents that the Warrants do not constitute qualifying employer securities as defined in section 407(d)(5) of the Act.'' In this connection, the Applicant commented that ``it did not concede in its [a]pplication [for exemption] that the Warrants `do not constitute' qualifying employer securities, but indicated that they may not be.'' After due consideration, the Department has adopted these

clarifications requested by the Applicant.

Therefore, after giving full consideration to the entire record, the Department has determined to grant the exemption subject to the modifications described herein.

For a more complete statement of the facts and representations supporting the Department's decision to grant this exemption, refer to the notice of proposed exemption published in the Federal Register on July 2, 2007 at 72 FR 36058.