In a FAE DB plan, is an incapacity type of retirement an "unpredictable contingent event benefit" and otherwise not protected by the anti-cutback provisions as recently clarified by final re

[gle3186]

In this FAE DB plan, there is an incapacity retirement that provides an unreduced age 65 annuity (sla or J and S options--no lump sum) if one is at least age 40 with 10 or more years of service and meets one of the two methods of being deemed incapacitated at the date of termination. These two methods are 1) a SSA disability award indicates that the person was disabled on a date prior to termination or 2) the person meets/met the "plan" definition of incapacity at termination.

It would appear that it would consistent with the aforementioned final regulations to eliminate this type of retirement or alter the methods of being deemed incapacitated (remove the plan definition method and rely solely on the non-discretionary SSA method) if we amended the plan to do so by the end of this year.

We would like to do so but want to feel that such is consistent with the relevant regulatory guidance.

Trying to figure out how this "feature" of the plan is or is not an ancillary benefit that is otherwise not protected by the anti-cutback rule or is or is not a unpredictable contingent event benefit (as is a shutdown benefit) and thus potentially amendable out of the plan if done on or before 12-31-05 has been difficult.