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  1. 401(k) Plan with EACA provision Plan has default percentage at 2%, with auto escalation of 1% up to 8%. Auto escalation feature does not apply to HCEs (this special provision is written in the plan document). The plan sponsor has used the 90 day permissible withdrawal provision (elected in the AA) afforded to EACA but NOT the 6 month extension to cure ADP/ACP failures. All other requirements of EACA have been satisfied except for what is mentioned here. Ultimately, the Plan Sponsor wants to have the ability to use the 6 month extension without auto escalating the HCES due to ADP testing issues. With the uniformity requirement, I don't think that is possible because they exclude the HCEs from the auto escalator. BUT - then I started to wonder about the use of the 90 day permissible withdrawal feature (which the plan sponsor has used in the past) in a plan that may not be EACA at all (uniformity requirement). Question - 1. Does the exclusion of HCEs from the auto escalation feature prevent the arrangement from being considered an EACA and therefore no 90 day w/d provision allowed? 2. Would excluding the HCEs from the automatic enrollment provision altogether allow the plan to be an EACA with use of 90 day w/d provision and 6 month extension on ADP/ACP? My thought here is that the HCES would no longer be considered a "covered employee" and there no issue with uniformity requirement. Any guidance you can provide here would be greatly appreciated. E
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