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I clicked your link and it seems to have been fixed. I think an IRA agent is assigned to read Benefitslink.

I think the problem here as an answer to your question is that if a plan sponsor wanted to do that almost all of us would say, you can't. Or at least we would say you shouldn't try.

I've had EBSA confirm that the 7-business day safe harbor is not used for earnings calculation purposes, the date the amounts normally would have been deposited is instead. Or, 1/6 as C.B. Zeller suggests.

Or, at least I think the site is wrong in this case. On the page Is my 401(k) Plan Top-Heavy? (https://www.irs.gov/retirement-plans/is-my-401k-top-heavy), the section titled "Making Minimum Contributions..." it says: "If the average contribution for all key employees is less than 3%, non-key employees also receive that lower percentage instead of 3%." I do not believe it's the average, but the HIGHEST Key EE contribution that is considered here. So, I have one Key EE with a contribution of 2.5% and another with 1.5%, the the TH minimum is 2.5%, not 2%. So who do I contact at the IRS to ask about it? (Or am I really wrong? I consulted Treas Reg 1.414-1 M-7 and the EOB Chap 3B Sev IV Part A.2 which seem to agree with my position)

A retirement plan is like a gym membership. You have to keep paying for it even if you are not using it. When you cancel your membership/terminate the plan, you can stop paying.

How about that! Hey, IRS,I think my tax rate should be 0%

I don't think the excerpt is limited to which categories of employees are eligible, but in my experience 457(b) top hat documents routinely have this language in a section on plan administration. As far as discretion to choose eligible employees, I have seen it both ways - stated categories (e.g., "VPs or above," etc.) and, particularly for smaller organizations, completely discretionary (e.g., "the employees designated as eligible by the plan administrator in its discretion" or "the individuals designated by the plan administrator and listed on Schedule A," provided they are in a management/highly paid group).

So, back to BG's original question as to how to get it corrected, now we know - post it on BenefitsLink!

The webpage now states: "If the highest contribution percentage for a key employee is less than 3%, non-key employees receive the highest percentage for a key employee instead of 3%." And the webpage now notes “Page Last Reviewed or Updated: 16-Nov-2021”.

You are correct. If you are an ASPPA member you may want to contact the Government Affairs Committee. I am confident they would get your find to the right people.

If payday is Monday, and they usually make the contribution on Wednesday, then I would start the clock on 1/6.

As long as the plan sponsor adopts (or intendeds to adopt) a SECURE amendment timely (or one is pushed out by the VS sponsor) then they can interpret the provision under the new rules even before amendment gets adopted.

The rule is that you use the balance on the last valuation date in the calendar year immediately preceding the distribution calendar year, with adjustments. For the 2021 distribution calendar year, you would use the account balance as of the 9/30/2020 valuation date. Increase it by the amount of any contributions allocated to the participant's account, or decrease it by the amount of any distributions made from the participant's account between 10/1/2020 and 12/31/2020.

Would both plans pass coverage if tested separately? If so, then you can do whatever you want, including using a non-safe harbor design for plan 2. If not, then you are out of luck. There is a rule that you cannot aggregate plans that use different methods of satisfying the ADP test, including different safe harbors.

If the plan has only yearly valuations each September 30, isn't a December 31 balance the same as the preceding September 30 balance?

Do you enjoy......

Also, don't you need the 3% SHNE notice anyway if you want to have the ability to stop it in the middle of the year (and be subject to ADP testing)?

The notice requirement was eliminated solely for the 3% (or 4%) safe harbor non-elective contribution, and solely for purposes of the ADP safe harbor. If you want to use a non-elective contribution to qualify for the ACP safe harbor - for example, you want to make a discretionary match that is not subject to the ACP test - then you still need the notice.