Deemed Uniformity & 401(l)

[LIBOR]

Under Reg 1.401(l)-3©(2) you have deemed uniformity with fractional accrual if you have disparity for 35 years and no more than the excess % applied to average comp for years after 35 ( 1.401(l)-3©(2)(ii)(B) ).

Question : If the plan's formula provides for the excess % for years after 35 but before 40 , is this still uniform ???