Commerce coverage and small profit sharing plans

P/OPINION 75-46


                                                              4(b)


                        November 10, 1975


Dear              :

This is in reply to your letter dated June 12, 1975,
requesting information as to the minimum standards for
any employer to be "engaged in commerce or in an industry
affecting commerce" under the Employee Retirement Income
Security Act of 1974 (ERISA). You would like to know
if the jurisdictional standard of the Labor Management
Relations Act (LMRA), as adopted by the National Labor
Relations Board (NLRB), will be utilized for the purpose
of determining whether or not an employer's activity
or industry affects commerce.

The LMRA standards will be utilized in determining whether
or not an employer's activity or industry affects commerce.
However, the fact that the NLRB may fail to exert jurisdiction
on policy grounds would not exempt a plan from coverage
under the ERISA. Employers are deemed to be engaged in
commerce or in an industry affecting commerce if any of
their operations include the purchase of equipment,
supplies and materials from out-of-state sources, the
interstate transmission of information and correspondence,
the regular and continual use of instrumentalities of
interstate communications, such as the mails, telephone
and tele-types, as well as interstate travel on official
business.

You also raise the question as to whether the small size
of the profit-sharing plans would have a bearing on the
requirements under the ERISA. Plans are not exempt from
coverage under the ERISA solely on the basis of size.
Small profit-sharing plans are required to file Form EBS-1.

We are enclosing a copy of a regulation that was published
in the Federal Register on August 15, 1975. Section 2520.104-3
thereof requires that a short form plan description consisting
of the first two pages of Form EBS-1 (without schedules A, B
and C) and the signature page (item 38 only) should have been
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P/OPINION 75-46


filed with the Department by August 31, 1975. Late filing
of the short form plan description should be accompanied
by a brief explanation of the delay in filing.

A revised and simplified version of the EBS-1 was published
in the Federal Register of October 10, 1975, for comment.
It is expected that the final version of the EBS-1 will be
issued soon after the expiration of the comment period.
Section 2520.104-3 of the August 15 regulation also requires
plan administrators to file the revised EBS-1 in full,
as well as a copy of the summary plan description, by May 30,
1976. By the same date, a copy of the summary plan description
must be furnished to plan participants and beneficiaries.

Sincerely,