Federal Register / Vol. 83, No. 116 / Friday, June 15, 2018 / Rules and Regulations 28149 

■ b. Adding a new paragraph (b)(1) to 

read as follows: 

12.503 Applicability of certain laws to 

Executive agency contracts for the 

acquisition of commercial items. 

* * * * * 

(b) * * * 

(1) 22 U.S.C. 2593e, Requirement for 

a certification under Measures Against 

Persons Involved in Activities that 

Violate Arms Control Treaties or 

Agreements with the United States (see 

9.109). 

* * * * * 

PART 13—SIMPLIFIED ACQUISITION 

PROCEDURES 

■ 7. Amend section 13.005 by adding 

paragraph (a)(11) to read as follows: 

13.005 List of laws inapplicable to 

contracts and subcontracts at or below the 

simplified acquisition threshold. 

(a) * * * 

(11) 22 U.S.C. 2593e (Measures 

Against Persons Involved in Activities 

that Violate Arms Control Treaties or 

Agreements with the United States). 

(The requirement at 22 U.S.C. 

2593e(c)(3)(B) to provide a certification 

does not apply). 

* * * * * 

PART 52—SOLICITATION PROVISIONS 

AND CONTRACT CLAUSES 

■ 8. Add section 52.209–13 to read as 

follows: 

52.209–13 Violation of Arms Control 

Treaties or Agreements—Certification. 

As prescribed in 9.109–5, insert the 

following provision: 

Violation of Arms Control Treaties or 

Agreements—Certification (JUN 2018) 

(a) This provision does not apply to 

acquisitions below the simplified acquisition 

threshold or to acquisitions of commercial 

items as defined at FAR 2.101. 

(b) Certification. [Offeror shall check either 

(1) or (2).] 

____ (1) The Offeror certifies that— 

(i) It does not engage and has not engaged 

in any activity that contributed to or was a 

significant factor in the President’s or 

Secretary of State’s determination that a 

foreign country is in violation of its 

obligations undertaken in any arms control, 

nonproliferation, or disarmament agreement 

to which the United States is a party, or is 

not adhering to its arms control, 

nonproliferation, or disarmament 

commitments in which the United States is 

a participating state. The determinations are 

described in the most recent unclassified 

annual report provided to Congress pursuant 

to section 403 of the Arms Control and 

Disarmament Act (22 U.S.C. 2593a). The 

report is available via the internet at https:// 

www.state.gov/t/avc/rls/rpt/; and 

(ii) No entity owned or controlled by the 

Offeror has engaged in any activity that 

contributed to or was a significant factor in 

the President’s or Secretary of State’s 

determination that a foreign country is in 

violation of its obligations undertaken in any 

arms control, nonproliferation, or 

disarmament agreement to which the United 

States is a party, or is not adhering to its arms 

control, nonproliferation, or disarmament 

commitments in which the United States is 

a participating state. The determinations are 

described in the most recent unclassified 

annual report provided to Congress pursuant 

to section 403 of the Arms Control and 

Disarmament Act (22 U.S.C. 2593a). The 

report is available via the internet at https:// 

www.state.gov/t/avc/rls/rpt/; or 

____ (2) The Offeror is providing separate 

information with its offer in accordance with 

paragraph (d)(2) of this provision. 

(c) Procedures for reviewing the annual 

unclassified report (see paragraph (b)(1) of 

this provision). For clarity, references to the 

report in this section refer to the entirety of 

the annual unclassified report, including any 

separate reports that are incorporated by 

reference into the annual unclassified report. 

(1) Check the table of contents of the 

annual unclassified report and the country 

section headings of the reports incorporated 

by reference to identify the foreign countries 

listed there. Determine whether the Offeror 

or any person owned or controlled by the 

Offeror may have engaged in any activity 

related to one or more of such foreign 

countries. 

(2) If there may have been such activity, 

review all findings in the report associated 

with those foreign countries to determine 

whether or not each such foreign country was 

determined to be in violation of its 

obligations undertaken in an arms control, 

nonproliferation, or disarmament agreement 

to which the United States is a party, or to 

be not adhering to its arms control, 

nonproliferation, or disarmament 

commitments in which the United States is 

a participating state. For clarity, in the 

annual report an explicit certification of noncompliance is equivalent to a determination 

of violation. However, the following 

statements in the annual report are not 

equivalent to a determination of violation: 

(i) An inability to certify compliance. 

(ii) An inability to conclude compliance. 

(iii) A statement about compliance 

concerns. 

(3) If so, determine whether the Offeror or 

any person owned or controlled by the 

Offeror has engaged in any activity that 

contributed to or is a significant factor in the 

determination in the report that one or more 

of these foreign countries is in violation of its 

obligations undertaken in an arms control, 

nonproliferation, or disarmament agreement 

to which the United States is a party, or is 

not adhering to its arms control, 

nonproliferation, or disarmament 

commitments in which the United States is 

a participating state. Review the narrative for 

any such findings reflecting a determination 

of violation or non-adherence related to those 

foreign countries in the report, including the 

finding itself, and to the extent necessary, the 

conduct giving rise to the compliance or 

adherence concerns, the analysis of 

compliance or adherence concerns, and 

efforts to resolve compliance or adherence 

concerns. 

(4) The Offeror may submit any questions 

with regard to this report by email to 

NDAA1290Cert@state.gov. To the extent 

feasible, the Department of State will respond 

to such email inquiries within 3 business 

days. 

(d) Do not submit an offer unless— 

(1) A certification is provided in paragraph 

(b)(1) of this provision and submitted with 

the offer; or 

(2) In accordance with paragraph (b)(2) of 

this provision, the Offeror provides with its 

offer information that the President of the 

United States has— 

(i) Waived application under U.S.C. 

2593e(d) or (e); or 

(ii) Determined under 22 U.S.C. 2593e(g)(2) 

that the entity has ceased all activities for 

which measures were imposed under 22 

U.S.C.2593e(b). 

(e) Remedies. The certification in 

paragraph (b)(1) of this provision is a 

material representation of fact upon which 

reliance was placed when making award. If 

it is later determined that the Offeror 

knowingly submitted a false certification, in 

addition to other remedies available to the 

Government, such as suspension or 

debarment, the Contracting Officer may 

terminate any contract resulting from the 

false certification. 

(End of provision) 

[FR Doc. 2018–12848 Filed 6–14–18; 8:45 am] 

BILLING CODE 6820–EP–P 

DEPARTMENT OF DEFENSE 

GENERAL SERVICES 

ADMINISTRATION 

NATIONAL AERONAUTICS AND 

SPACE ADMINISTRATION 

48 CFR Chapter 1 

[Docket No. FAR 2018–0001, Sequence 

No. 3] 

Federal Acquisition Regulation: 

Federal Acquisition Circular 2005–99; 

Small Entity Compliance Guide 

AGENCY: Department of Defense (DoD), 

General Services Administration (GSA), 

and National Aeronautics and Space 

Administration (NASA). 

ACTION: Small Entity Compliance Guide. 

SUMMARY: This document is issued 

under the joint authority of DoD, GSA, 

and NASA. This Small Entity 

Compliance Guide has been prepared 

consistent with section 212 of the Small 

Business Regulatory Enforcement 

Fairness Act of 1996. It consists of a 

summary of the rules appearing in 

Federal Acquisition Circular (FAC) 

2005–99, which amends the Federal 


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28150 Federal Register / Vol. 83, No. 116 / Friday, June 15, 2018 / Rules and Regulations 

Acquisition Regulation (FAR). An 

asterisk (*) next to a rule indicates that 

a regulatory flexibility analysis has been 

prepared. Interested parties may obtain 

further information regarding these 

rules by referring to FAC 2005–99, 

which precedes this document. These 

documents are also available via the 

internet at http://www.regulations.gov. 

DATES: June 15, 2018. 

FOR FURTHER INFORMATION CONTACT: For 

clarification of content, contact the 

analyst whose name appears in the table 

below. Please cite FAC 2005–99 and the 

FAR case number. For information 

pertaining to status or publication 

schedules, contact the Regulatory 

Secretariat Division at 202–501–4755. 

RULES LISTED IN FAC 2005–99 

Item Subject FAR case Analyst 

* I ....................... Use of Products and Services of Kaspersky Lab (Interim) ................................................................ 2018–010 Francis. 

* II ...................... Violations of Arms Control Treaties or Agreements with the United States (Interim) ....................... 2017–018 Davis. 

SUPPLEMENTARY INFORMATION: 

Summaries for each FAR rule follow. 

For the actual revisions and/or 

amendments made by these rules, refer 

to the specific item numbers and 

subjects set forth in the documents 

following these item summaries. FAC 

2005–99 amends the FAR as follows: 

Item I—Use of Products and Services of 

Kaspersky Lab (FAR Case 2018–010) 

This interim rule amends the Federal 

Acquisition Regulation (FAR) to 

implement section 1634 of Division A of 

the National Defense Authorization Act 

(NDAA) for Fiscal Year (FY) 2018 (Pub. 

L. 115–91). Section 1634 of this law 

prohibits the Federal Government’s use 

on or after October 1, 2018, of hardware, 

software, and services developed or 

provided, in whole or in part, by 

Kaspersky Lab or related entities. 

To implement section 1634, the 

clause at 52.204–23 prohibits 

contractors from providing any 

hardware, software, or services 

developed or provided by Kaspersky 

Lab or its related entities, or using any 

such hardware, software, or services in 

the development of data or deliverables 

first produced in the performance of the 

contract. The contractor must also 

report any such hardware, software, or 

services discovered during contract 

performance; this requirement flows 

down to subcontractors. 

This rule applies to all acquisitions, 

including acquisitions at or below the 

simplified acquisition threshold and to 

acquisitions of commercial items, 

including commercially available offthe-shelf items. It may have a significant 

economic impact on a substantial 

number of small entities. 

This interim rule is being 

implemented as a national security 

measure to protect Government 

information and information systems. 

Item II—Violations of Arms Control 

Treaties or Agreements With the United 

States (FAR Case 2017–018) 

This interim rule amends the Federal 

Acquisition Regulation (FAR) to 

implement section 1290 of the National 

Defense Authorization Act for Fiscal 

Year 2017 (Pub. L. 114–328, codified at 

22 U.S.C. 2593e), which addresses 

measures against persons involved in 

activities that violate arms control 

treaties or agreements with the United 

States. The interim rule adds a 

certification provision in each 

solicitation for the acquisition of 

products or services (including 

construction) that exceeds the 

simplified acquisition threshold, except 

for solicitations for the acquisition of 

commercial items. 

This interim rule will not have a 

significant economic impact on a 

substantial number of small entities. 

Dated: June 7, 2018. 

William F. Clark, 

Director, Office of Government-wide 

Acquisition Policy, Office of Acquisition 

Policy, Office of Government-wide Policy. 

[FR Doc. 2018–12849 Filed 6–14–18; 8:45 am] 

BILLING CODE 6820–EP–P 


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