The Office of Federal Contract Compliance Programs (OFCCP) published a notice on December 29, 2020, that seeks comments on its AAP-VI initiative. The Affirmative Action Program Verification Interface (AAP-VI) initiative has two major components:

• A secure portal that can be used to upload data to OFCCP that is requested as part of a compliance review
• A portal that will be used by federal contractors and subcontractors to certify they are meeting their obligation to complete affirmative action programs

Comments Must Be Submitted to the Office of Management and Budget

OFCCP originally published a notice regarding the AAP-VI initiative in September of 2020, which we wrote about in a previous blog. That notice asked for comments to be submitted to OFCCP. OFCCP has reviewed these comments, and has sent a document to the Office of Management and Budget (OMB) regarding the implementation of the AAP-VI initiative. The December 29 notice instructs interested parties to provide comments on what the agency has submitted to OMB by January 28, 2021.

There are multiple ways to provide comments to OMB on the AAP-VI initiative. Interested parties can provide comments at either the Federal Register website or at regulations.gov. The December 29 notice can be found at these sites. However, the notice specifically instructs interested parties to comment on the reginfo.gov portion of OMB’s website. Commenters can look for the link to that says Currently under Review – Open for Public Comments. Alternately, commenters can look for information collection requests currently under review for the Department of Labor at the main information collection request page of the reginfo.gov website.

Annual Certification

The portion of the AAP-VI initiative that requires an annual certification will ask federal contractors and subcontractors to select from one of the following choices:

1. Entity has developed and maintained affirmative action programs at each establishment, as applicable, and/or for each functional or business unit.  See 41 CFR Chapter 60.

2. Entity has been party to a qualifying federal contract or subcontract for 120 days or more and has not developed and maintained affirmative action programs at each establishment, as applicable.  See 41 CFR Chapter 60.

3. Entity became a covered federal contractor or subcontractor within the past 120 days and therefore has not yet developed applicable affirmative action programs.  See 41 CFR Chapter 60.

(See AAP-VI supporting statement, page 7)

OFCCP appears to believe that the questions above constitute the information collection request that must be approved by OMB in regard to the certification portion of the AAP-VI initiative. OFCCP has not yet created a specific form that must be completed in regard to certification. The supporting statement from OFCCP provides some instructions regarding the completion of the certification.

Issues Associated with the AAP-VI Certification

It appears that each contractor establishment will need to complete the annual certification required under AAP-VI. OFCCP’s supporting document says that a representative of each establishment or of a corporate headquarters may complete the certification for each establishment. However, OFCCP does not define the terms “establishment” in this document or in any of its formal regulations.

The supporting document suggests that the AAP-VI site will be pre-populated with information from EEO-1 reports. OFCCP does not recognize that some organizations have affirmative action programs (more commonly referred to as “affirmative action plans” or “AAPs”) in which the AAPs do not align with EEO-1 reports. This is especially the case with organizations that have functional affirmative action plans. It is not clear how the agency will deal with this issue.

OMB Will Be Seeking Comments on Burden to the Public

In its September notice, OFCCP sought comments on the substantive aspects of the AAP-VI initiative. These comments have already been reviewed and considered by the agency. OMB will now be considering the burden to public of the AAP-VI initiative under the Paperwork Reduction Act. Comments to OMB should focus on whether OFCCP has properly calculated the burden hours for activities associated with the AAP-VI initiative. Comments may also focus on whether OFCCP has delivered a proper information collection request to OMB. OMB is unlikely to give consideration to comments that focus on whether the AAP-VI initiative is a “good idea.”

HR Analytical Services will continue to monitor for developments regarding the AAP-VI. Clients of HR Analytical Services who wish to receive news regarding this or other developments in affirmative action should contact their respective consultant.