OFCCP has released a notice that begins the process of implementing an affirmative action program verification initiative.  The notice was released on September 14, 2020 and was accompanied by a document providing the justification for this new initiative.  OFCCP had initially announced a verification initiative in Directive 2018-07, which was released on August 24, 2018.

Affirmative Action Program Verification Initiative

The notice and justification document describe OFCCP’s intent to implement an affirmative action program verification interface (AAP-VI).  OFCCP’s notice states that under this initiative, OFCCP

“seeks authorization for an annual Affirmative Action Program online certification process for federal contractors and for a secure method for federal contractors to submit AAPs electronically to OFCCP when they are scheduled for a compliance evaluation.” 

The justification document provides a rationale for the AAP-VI. This document also describes how the AAP-VI would work.

The justification document states that OFCCP will establish a system for federal contractors and subcontractors to register using AAP-VI.  As part of the registration process, organization will be asked to establish users for their organizations and provide information on the organization and its various establishments.

Annual Certification

Using AAP-VI, federal contractors and subcontractors will be asked to certify on an annual basis whether affirmative action programs have been established.  The justification document says that organizations will be asked to certify that the organization:

1. Has developed and maintained affirmative action programs at each establishment, as applicable, or for each functional or business unit, or;
2. 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, or;
3. Became a covered federal contractor or subcontractor within the past 120 days and therefore has not yet developed applicable affirmative action programs.

Organizations that have federal contracts or subcontracts will have 90 days to comply with the certification requirement once it takes effect.

Affirmative Action Program Upload

OFCCP also expects to use its AAP-VI system for organizations undergoing a compliance review.  These organizations would be required to upload the affirmative action plans (AAPs) for the establishment undergoing a review to AAP-VI.  OFCCP’s initial proposal for AAP-VI does not anticipate that all federal contractors and subcontractors would upload AAPs on an annual basis.  However, OFCCP is considering the possibility for an annual upload of AAPs as one alternative to its current proposal.

Information Collection Request

In order to fully implement AAP-VI, OFCCP will need to develop a formal information collection request (ICR).  The agency has not released a preliminary version of this ICR.  Instead, the parameters of the ICR are described in the justification document.  It is unclear whether OFCCP will release a specific version of this ICR until it has considered comments on the AAP-VI notice and justification document.

OFCCP Seeking Comments

OFCCP’s AAP-VI notice states that the agency will be accepting comments on this program until November 13, 2020.  The notice asks for comments on the practical utility of the AAP-VI and the likely burden hours associated with this program.  The justification document more specifically asks for comments on several alternate approaches to AAP-VI, including the option for an annual submission of affirmative action plans.  Other alternate option under AAP-VI include the following: 

• An annual certification without a requirement for uploading AAPs during a compliance review
• Certification every two years without a requirement for uploading AAPs during a compliance review

Since OFCCP has not released a preliminary form of the ICR that would be used, the public is effectively being asked to comment on the value and practicality of an annual certification and upload process. The notice and justification document for AAP-VI can be found on regulations.gov.  We will continue to monitor this situation to see if OFCCP provides any more information regarding AAP-VI.