Reporting Compliance Enforcement Manual Chapter 8: Letter Types

Inquiry Letter

Inquiry Letter Defined
Regulation This letter is not statutory
Which Cases The Inquiry letter may be used on all case types. There may be specific letters depending on the case type.
Analyst Action Period Within 15 days of assignment if a merge file for automatic letter generation has been created. If no such file exists, then 30 days from assignment.
Preceded By If used, this is generally the first correspondence.
Followed By Closing memo – If a response is received within the specified response period that satisfies the reason for sending this Letter
NOR or NOI (depending on case type) – If no response is received (or the response does not satisfy the stated reason(s) for the Inquiry Letter)
Inquiry Follow-up Letter – If the deficiency does not warrant sending a NOR/NOI. See below for further discussion
Response Period The Inquiry letter may have a response period of 10, 15, or 30 days.
Certified? The Inquiry Letter is always mailed certified or overnight delivery. The green card or other proof of delivery must be attached to the letter.
Dated? The Letter of Inquiry is not dated by the analyst, unless instructed otherwise.
Signed By Analyst or Division Chief
Review Block? Yes, place it on the top upper left side of the Letter.

As with all letters, the official template is located on the L drive. It is required that this version be used. Usage of different versions may result in the case being returned to the analyst.

The Inquiry letter has a flexible response period of 10, 15, or 30 days. The majority of the time the response period should be 10 days. Generally this letter is used when, after reviewing a filing, clarification or amendment is needed.

When a response is received within the required period, review the materials. If the issues have been resolved and no new issues have surfaced, prepare a closing memo.

If the issues have not been resolved with the response, either prepare a NOR/NOI or an Inquiry Follow-up.

  • The NOR/NOI should be prepared when the outstanding issue is relevant and significant.
  • If the analyst and reviewer feel the outstanding issue is minor, an Inquiry Follow-up letter may be used. This letter informs the plan that the issues remains outstanding and should be resolved; however the Office of the Chief Accountant will take no further action.

As with all letters, the analyst shall prepare an envelope and a return receipt green card and submit the Letter of Inquiry and case file to the respective Team Leader for clearance and signature. Once reviewed by the Team Leader and when found to be appropriate for release, the Team Leader gives the entire case file including the Inquiry Letter to the administrative staff for mailing and the updating of the OCATS system to reflect the current status. After the letter is mailed, the case file will be returned to the analyst.

Notice of Rejection

NOR Defined
Which Cases The NOR is used on deficient filer cases.
Analyst Action Period If first correspondence: Within 15 days of assignment if a merge file for automatic letter generation has been created. If no such file exists, then 30 days from assignment.
If Inquiry was issued: Within 30 days from the receipt of a response or the expiration of the response period, whichever is less.
Preceded By The NOR can either be preceded by an Inquiry letter, or be the first correspondence.
Followed By A closing memo and Notice of Satisfactory Filing if the issues are resolved. Otherwise, a Notice of Intent to Assess a Penalty.
Response Period The filer has 45 days from the date of the letter.
Closing Reasons Administrative, Bankrupt/Terminated, Undeliverable, No Deficiency, Filer Has Demonstrated that the Filing Was Satisfactory, A Filing Was Not Required.
Certified? The NOR is ALWAYS mailed certified or overnight delivery. The green card or other proof of delivery must be attached to the letter.
Dated? The NOR is not dated by the analyst, unless instructed otherwise.
Signed By The analyst
Review Block? Yes

As with all letters, the official template is located on the L drive. It is required that this version be used. Usage of different versions may result in the case being returned to the analyst.

The purpose of issuing the NOR is to notify filers of deficiencies in their annual report filings submitted to the Department and to afford them the opportunity to voluntarily comply with the required rules and regulations. The goal is to receive an acceptable amended annual report filing without advancing to the next level of correspondence, which may result in penalties.

If an Inquiry letter was issued on a Deficient filer case, and a satisfactory response is not received within the required time period, the next step is the issuance of a NOR. The NOR includes all the reporting and disclosure deficiencies noted by the analyst.

The NOR requires a response from the plan administrator within 45 days of the date of the NOR. The 45-day period is statutorily required pursuant to Section 104(a)(5) of ERISA which provides the plan administrator 45 days to submit a revised annual report filing satisfactory to the Department of Labor before any further enforcement action can be taken.

Upon receipt of a response to the NOR, the analyst shall perform a review of the information submitted to determine whether:

  • The plan administrator has corrected all of the deficiencies cited in the NOR and submitted an acceptable amended annual report filing; and
  • The response was received timely, within 45 days of the date of the NOR. It is the policy of OCA to use the postmark date of the response to the NOR as the receipt date.

If all of the deficiencies cited in the NOR have been satisfactorily corrected, the analyst will close the case and prepare a Notice of Satisfactory Filing and a Case Closing Memo.

If the plan administrator fails to respond to the Notice of Rejection within the 45-day period, or fails to provide a revised annual report filing satisfactory to the Department, the analyst will issue a Notice of Intent to Assess a Penalty. This also applies if the filer sends the correction after the 45-day response period but before the NOI has been issued.

Notice of Satisfactory Filing

Notice of Satisfactory Filing (NSF) Defined
Regulation This letter is not statutory.
Which Cases The NSF is used on deficient cases only.
Analyst Action Period Within 30 days from the receipt of the correspondence
Preceded By The NSF is preceded by a Notice of Rejection (NOR).
Followed By Closing Memo
Response Period No response is required.
Closing Reasons Filer filed an amended Form 5500 that satisfied all of the deficiencies listed in the NOR.
Certified? The NSF is not sent Certified
Dated? The NSF is not dated by the analyst. The NSF will be dated by the support staff prior to the NSF being mailed.
Signed By The analyst
Review Block? Yes

As with all letters, the official template is located on the L drive. It is required that this version be used. Usage of different versions may result in the case being returned to the analyst.

The NSF is a courtesy letter, informing the plan that OCA will be taking no further action on the issues raised in the NOR. In addition to the NSF, a closing memo must be prepared for the case file. Additionally, the analyst shall also include in the case file a memo that documents the receipt of the amended Form 5500 filing and proposed issuance of the NSF.

The analyst shall prepare and sign the letter, prepare an envelope, and prepare a closing memo, then submit the NSF, closing memo, and case file to the Team Leader for clearance. Once reviewed and approved by the Team Leader, the entire case file will be given to the administrative staff for mailing and updating of the OCATS system to reflect current status. The case file will then be filed in the file room.

Closing Memo

Closing Memo
Regulation This is not statutory
Which Cases Most cases that are closed prior to the issuance of a NOI.
Analyst Action Period Within 30 days of the assignment of the case or within 30 days of the receipt of a timely response to correspondence.
Followed By Case closure and filing
Preparer Analyst

As with all letters and forms, the official template is located on the L drive. It is required that this version be used. Usage of different versions may result in the case being returned to the analyst. The closing memo is used to close most cases prior to the issuance of a Notice of Intent to Assess a Penalty. To prepare the closing memo, complete the top of the form and select the appropriate closing reason. Only one closing reason maybe selected.

Analyst Closing Reason
Administrative The case is being closed at the recommendation of a team leader or supervisor.
Bankrupt/Terminated It is discovered that the plan is either in bankruptcy or in the process of termination. Prior to closing, proper research must be conducted and noted in the file.
Undeliverable Our correspondence is returned after numerous attempts. Document all attempts and research conducted.
Filer has demonstrated the filing was satisfactory The filer has submitted information to OCA indicating there was no deficiency and the filing was correct as originally filed.
Corrected filing received The filer has submitted a filing that corrects the deficiencies and no further deficiencies are identified. This reason cannot be used for Non-filer or Late filer cases.
No deficiencies NO correspondence has been issued by OCA and the filing is deemed to be satisfactory. This occurs during the initial review.
OE Referral The case is referred to OE and the sole closing reason is the referral. Comments must indicate the reason for the referral.
Filing not required for this plan It is discovered that a filing was not needed. Comments must indicate the reason a filing is not required.

Notice of Intent to Assess a Penalty

NOI Defined
Regulation Regulation §2560.502c-2(c) states: Prior to the assessment of any penalty under section , the Department shall provide to the administrator of the plan a written notice indicating the Department's intent to assess a penalty under section , the amount of such penalty, the period to which the penalty applies, and the reason(s) for the penalty.
Which Cases The NOI is used on all case types
Analyst Action Period Within 30 days of receipt of a timely response to the NOR, within 30 days of the NOR target date, or within 30 days of case assignment.
Preceded By On deficient filer cases, the NOI is preceded by a Notice of Rejection. On late filers, non-filers, and DFVC filings the NOI may be the first correspondence.
Followed By If a response is received under penalties of perjury, prepare a reasonable cause analysis and the Notice of Determination. If no response is received (see "Penalty of Perjury Notice" section for handling responses not signed under Penalties of Perjury) refer the case to collections.
Response Period The filer has 35 days from the date of the letter if mailed certified. If the letter is mailed overnight delivery, or other method, the response period is 30 days.
Closing Reasons Administrative, Failure to respond timely to NOI, NOD issued, Withdraw and close NOI
Certified? The NOI is ALWAYS mailed certified or overnight delivery. The green card or other proof of delivery must be attached to the letter.
Dated? The NOI is always dated by the analyst, unless it is a Non-filer case which should not be dated.
Signed By Ian Dingwall, Chief Accountant
Review Block? Yes

As with all letters, the official template is located on the L drive. It is required that this version be used. Usage of different versions may result in the case being returned to the analyst.

Unless the case is a non-filer, the analyst should date the NOI since the penalty amount is calculated from the original due date, without regard to extension of time, until the date of issuance of the NOI. NOIs are dated for Mondays. The analyst shall ensure that the date of the NOI allows for sufficient time for the case to clear supervisory review and for signature. Failure to allow for sufficient time may result in the analyst having to prepare a new NOI. The analyst shall prepare an envelope and a return receipt green card and submit the NOI and case file to their team leader for clearance and signature.

Types of Penalties

Deficient Filing Penalties

  • Missing or deficient IQPA reports – $150/day capped at $50,000.
  • Missing or deficient information (financial or other significant items) $100/day capped at $36,500.
  • Missing or deficient non-critical information – $10/day capped at $3,650.

Late Filing Penalties

  • $50/day from the original due date (without regard to extension) to the filing date. There is no cap.

Non-Filing Penalties

  • $300/day from the original due date (without regard to extension) to the filing date.
  • The penalty is capped at $30,000 per year of delinquency and per filing. For further details, see the Non-filer section of this handbook.

OCA reserves its right to enforce this civil penalty to the full extent authorized.

The plan administrator has 35 days to respond to the NOI by providing a filing satisfactory to the DOL along with a statement of reasonable cause, made under the penalty of perjury, as to why the penalty should not be assessed. (If the NOI is mailed other than certified, the plan administrator has 30 days to respond.) There is no extension of time to the response period.

If the plan administrator has not responded by the 25th day, the analyst may contact the plan administrator or representative at the number reported on the Form 5500 Annual Report to remind him or her of the response deadline. As with all calls, this conversation must be documented in the case file. Failure to timely file a statement of reasonable cause results in the penalty becoming a final penalty subject to collection proceedings. In addition, failure to respond timely to the NOI results in the plan administrator waiving his/her administrative appeal rights before an Administrative Law Judge.

Penalty of Perjury Notice

POP Defined
Regulation This letter is not statutory.
Which Cases All cases where a response to the NOI was received, but it was not signed under penalties of perjury as required in §2560.502c-2(e).
Analyst Action Period Within 3 business days of the receipt of the NOI response.
Preceded By The Notice of Intent to Assess a Penalty
Followed By If a response, under penalties of perjury is received, the case proceeds to the NOD. Otherwise, the penalty becomes final.
Response Period The filer has 10 days from the date of the letter to respond with a statement of reasonable cause under penalties of perjury.
Closing Reason Failure to Respond Timely to the NOI
Certified? The POP is always mailed certified or overnight delivery. The green card or other proof of delivery must be attached to the letter.
Dated? By the support staff
Signed By Analyst
Review Block? Yes

As with all letters, the official template is located on the L drive. It is required that this version be used. Usage of different versions may result in the case being returned to the analyst.

Due to the importance of the penalty of perjury statement, the analyst must review the response to the NOI immediately upon receipt. If a statement is not included, the analyst will immediately prepare a POP letter and immediately present it for review. The POP letter will be mailed within three business days of receipt of the response to the NOI. It is the analyst's responsibility to ensure the POP is reviewed and mailed within three business days.

The POP's 10 day response period may extend beyond the NOI's 35 day response period or the collection deadline of 45 days. In this situation, if an acceptable response to the POP is received, the analyst action period is not changed and remains 30 days from the receipt of the original NOI response.

If a response to the POP is not received within 10 days, the OPPEM collection memo must be completed within 3 days of the expiration of POP time or on the 45th day after the issuance of the NOI, whichever is later. Note on the OPPEM memo that the delay in referral, if any, is due to attempting to obtain a signature under penalties of perjury.

Withdrawal Letter

Withdrawal Letter Defined
Regulation This letter is not statutory
Which Cases All case types.
Analyst Action Period 30 days from the assignment of the case to the issuance of the first correspondence or case closure.
Preceded By The NOI or the NOR
Followed By The Withdraw is the final action on the case
Response Period No response is required
Certified? The Withdrawal is not certified
Dated? The Withdraw is not dated by the analyst.
Signed By Analyst if withdrawing an NOR; Chief Accountant if withdrawing the NOI
Review Block? Yes

As with all letters, the official template is located on the L drive. It is required that this version be used. Usage of different versions may result in the case being returned to the analyst.

The purpose of the withdrawal letter is to rescind a Notice of Rejection (NOR) or Notice of Intent to Assess a Penalty (NOI). It notifies the filer that the Department intends to take no further action in regard to the issues discussed in the preceding correspondence.

Withdraws are issued if it has been determined that the filing was satisfactory prior to the date of the previous correspondence. Such determination is generally made based upon information submitted by the filer in response to the correspondence.

There may be circumstances where an NOR or NOI must be re-issued, thereby superseding a previously issued NOR or NOI. Be certain to use the NOR or NOI templates on the L drive that contain the appropriate "re-issue" language.

Notice of Determination of Reasonable Cause

Withdrawal Letter Defined
Regulation This letter is not statutory
Which Cases All case types.
Analyst Action Period 30 days from the assignment of the case to the issuance of the first correspondence or case closure.
Preceded By The NOI or the NOR
Followed By The Withdraw is the final action on the case
Response Period No response is required
Certified? The Withdrawal is not certified
Dated? The Withdraw is not dated by the analyst.
Signed By Analyst if withdrawing an NOR; Chief Accountant if withdrawing the NOI
Review Block? Yes

As with all letters, the official template is located on the L drive. It is required that this version be used. Usage of different versions may result in the case being returned to the analyst.

The purpose of the withdrawal letter is to rescind a Notice of Rejection (NOR) or Notice of Intent to Assess a Penalty (NOI). It notifies the filer that the Department intends to take no further action in regard to the issues discussed in the preceding correspondence.

Withdraws are issued if it has been determined that the filing was satisfactory prior to the date of the previous correspondence. Such determination is generally made based upon information submitted by the filer in response to the correspondence.

There may be circumstances where an NOR or NOI must be re-issued, thereby superseding a previously issued NOR or NOI. Be certain to use the NOR or NOI templates on the L drive that contain the appropriate "re-issue" language.

Reasonable Cause Committee (RCC) Defined
Regulation Making a determination of the Reasonable Cause Statement is statutory. The advisory role of the reasonable cause committee is a part of the determination process
Which Cases All cases that have responded to the NOI with a reasonable cause statement under penalties of perjury.
Preceded By The issuance of a Notice of Intent to Assess a Penalty and the receipt of a reasonable cause statement, under penalties of perjury, from the plan
Followed By Notice of Determination
Preparer Analyst

In addition to reviewing suggested penalty assessments, the current RCC makes recommendations for future action on cases brought before it to insure consistency among cases with similar facts.

The RCC is now composed of four OCA staff persons – the two members in DRC, a staff member from DAS, and the Chief Accountant's Senior Technical Advisor.

Generally, the Committee meets weekly, usually Tuesday or Wednesday mornings. However, the scheduling of the meeting is based on the volume of cases to be presented. At least 24-hours prior to a meeting, an e-mail is sent to all staff members alerting them of the date and time of the next meeting. Staff members who wish to present a case must complete the RCC Analysis form e-mail it to the RCC coordinator. This Analysis Chart shall include the analyst's analysis.

Technically, the Committee is an advisory board – its findings are recommendations for the division chief and chief accountant. If the analyst disagrees with the Committee's recommendations, he or she may discuss the case with his or her supervisor and, in turn, with the Division Chief or chief accountant.

After the RCC makes its recommendations, the analyst must revise the RCC Analysis Chart for the case file, and then prepare the Notice of Determination.

Reasonable Cause Committee Chart

Reasonable Cause Committee Chart
Regulation This is not statutory, however it is required
Which Cases All cases for which an NOD is prepared
Preceded By The issuance of a Notice of Intent to Assess a Penalty and the receipt of a reasonable cause statement, under penalties of perjury, from the plan.
Followed By Notice of Determination
Prepared By Analyst

As with all letters and forms, the official template is located on the L drive. It is required that this version be used. Usage of different versions may result in the case being returned to the analyst. When saving this document, it must be renamed and the 'Save as Type' must be changed from '.dot' to '.doc' for document.

The RC Chart is used to summarize the facts about the case prior to presenting it to the Reasonable Cause Committee. After meeting with the RCC, this chart must be updated to reflect the committee's recommendation. The chart is then retained in the case file.

The Chart is a template form that allows for entry only in shaded areas. To navigate the chart, use the tab key or the arrow keys to move between fields. (The shading does not print on the final document.) Use of the Enter key will create a new line within that field.

When completing this chart, do not retype the statements from the Plan Administrator's reasonable cause statement. The 'Other Considerations' field should indicate an additional information that was discovered through conversations, research, or other sources that may be pertinent to the case, such as bankruptcy or a previous bad actor.

The 'Analyst Recommendation' field should include the analyst's recommended penalty and the reason for that amount.

The Chart must be e-mailed to the RCC coordinator no later than the close of business the day prior to the RCC meeting. Following the RCC meeting, update the 'Final Penalty Amount' and the 'RCC Comments and Recommendations' fields and retain in the case file.

OCA Referral Form to the Office of Enforcement

OCA Referral to The Office of Enforcement (OE) Defined
Regulation This form is not statutory.
Prepared by The Analyst
Which Cases All cases where there are issues that should be handled by OE.
Preceded By The referral can be made at any point in the life of the case.
Followed By OE keeping OCA updated on the progress of the referral.
Response Period There is no set time period for OE to respond to OCA about the referral.
Dated? The referral is not dated by the analyst
Signed By Analyst
Review Block? Yes

As with forms and letters to be used by the analysts, the official template is located on the L drive. It is required that this version be used. Usage of different versions may result in the case being returned to the analyst.

The referral from OCA to OE is prepared by the analyst, listing themselves as the contact person. The subject of the referral is the name of the case. Briefly explain the reasons OCA is referring the case in the indicated area, such as the one of the following:

  • late remittance of contributions to the Plan, even if corrected,
  • failure to transfer contributions to the Plan, even if corrected,
  • fiduciary violations such as prohibited transactions,
  • bankruptcy and/or orphaned plan, and
  • hard to value assets especially when information on valuation of these assets are either extremely brief, or are non-existent or where the valuation of these assets is not currently dated.

Typically the case should be processed, within OCA, for closing once the case is referred to OE. However, the case should remain open if OE's actions may result in the need for an amended filing. Also, if a NOI or NOD is pending, the case must be kept open until the pending OCA issue(s) are resolved.