Does a 3% safe harbor non-elective contribution count as part of the total allocation for an HCE when comparing total allocations for the 1/3 allocation gateway? For instance, if a plan was providing the 3% safe harbor non-elective contribution to all employees (the only contribution for NHCE's), the HCE's then would be limited to 9%. Does that 9% include the safe harbor contribution the HCE's receive or can they get 3% safe harbor plus 9%?

TOtal of 9%, only 6% more to pass the 1/3 test. And don't forget you cannot used imputed disparity on the 3%.