ERISA written plan instrument requirements

P/OPINION 75-87


                                                              402

                       September 18, 1975

Gentlemen:

This is in response to your letter dated June 3, 1975, to
the Secretary of Labor in which you ask whether an enclosed
written instrument is sufficient to comply with the Employee
Retirement Income Security Act of 1974 (ERISA). You also
ask how to obtain any rules and regulations, including reporting
forms, adopted under the Act.

Regarding the written instruments, it appears that you are
asking whether it satisfies the requirement of ERISA
section 402(a)(1) that an employee benefit plan be established
and maintained pursuant to a written instrument. This section
of the Act does not specify who must establish the written
instrument and what formality is necessary in its establishment.
However, section 402 says that "Such instrument shall provide
for one or more named fuduciaries who jointly or severally
shall have authority to control and manage the operation
and administration of the plan."

Also, the Conference Report on the Act says, on page 297,
the following:

                  A written plan is to be required
                  in order that every employee may,
                  on examining the plan documents,
                  determine exactly what his rights
                  and obligations are under the plan.
                  Also, a written plan is required so
                  the employees may know who is responsible
                  for operating the plan. Therefore,
                  the plan document is to provide for the
                  "named fiduciaries" who have authority
                  to control and manage the plan operations
                  and administration.

Based on the above references to section 402 and the Conference
Report, a written instrument under section 402 must be established
by a person or entity which has authority to designate a "named
fiduciary" and to describe the rights and obligations of persons
covered by the plan. A cross-reference, or incorporation by
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P/OPINION 75-87



reference, to another plan document would be permissible
if the other document serves to fulfill the purposes of
section 402(a)(1). For example, where rights to plan
benefits are governed by the terms of an insurance
contract, a reference to the contract would be appropriate.

Regarding the formality in establishing the written instrument,
section 402(a)(1) and the Conference Report indicate that the
instrument must have the status of an official document of
the plan   Execution of the instrument by the plan sponsor,
acting as such, would serve this purpose.

Due to the limited resources of this office, we are not able
to review plan documents upon request for the purpose of
determining whether they meet all requirements of the law.
However, I hope that the information provided will be
helpful in understanding some basic aspects of the written
instrument requirement.

Copies of issuances and reporting forms implementing ERISA
may be obtained by contacting the Information Office of the
Labor-Management Services Administration, U. S. Department of
Labor, Washington, D. C. 20216 (phone number (202) 523-7408).
For your convenience, I am enclosing a copy of recently issued
regulations on the reporting and disclosure requirements and
a copy of Plan Description Form EBS-1.

Sincerely,