Federal Register / Vol. 83, No. 116 / Friday, June 15, 2018 / Rules and Regulations 28145 

Developed or Provided by Kaspersky Lab and 

Other Covered Entities (Jul 2018) (Section 

1634 of Pub. L. 115–91). 

* * * * * 

■ 8. Amend section 52.213–4 by— 

■ a. Revising the date of the clause; and 

■ b. Redesignating paragraphs (a)(1)(ii) 

through (vii) as paragraphs (a)(1)(iii) 

through (viii), respectively, and adding 

a new paragraph (a)(1)(ii). 

The revision and addition read as 

follows: 

52.213–4 Terms and Conditions— 

Simplified Acquisitions (Other Than 

Commercial Items). 

* * * * * 

Terms and Conditions—Simplified 

Acquisitions (Other than Commercial 

Items) (Jul 2018) 

(a) * * * 

(1) * * * 

(ii) 52.204–23, Prohibition on Contracting 

for Hardware, Software, and Services 

Developed or Provided by Kaspersky Lab and 

Other Covered Entities (Jul 2018) (Section 

1634 of Pub. L. 115–91). 

* * * * * 

■ 9. Amend section 52.244–6 by— 

■ a. Revising the date of the clause; 

■ b. Redesignating paragraphs (c)(1)(iv) 

through (xviii) as paragraphs (c)(1)(v) 

through (xix), respectively, and adding 

a new paragraph (c)(1)(iv). 

The revision and addition read as 

follows: 

52.244–6 Subcontracts for Commercial 

Items. 

* * * * * 

Subcontracts for Commercial Items (Jul 

2018) 

* * * * * 

(c)(1) * * * 

(iv) 52.204–23, Prohibition on Contracting 

for Hardware, Software, and Services 

Developed or Provided by Kaspersky Lab and 

Other Covered Entities (Jul 2018) (Section 

1634 of Pub. L. 115–91). 

* * * * * 

[FR Doc. 2018–12847 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 Parts 1, 9, 12, 13, and 52 

[FAC 2005–99; FAR Case 2017–018; 

Item II; Docket No. 2017–0018, Sequence 

No. 1] 

RIN 9000–AN57 

Federal Acquisition Regulation: 

Violations of Arms Control Treaties or 

Agreements With the United States 

AGENCY: Department of Defense (DoD), 

General Services Administration (GSA), 

and National Aeronautics and Space 

Administration (NASA). 

ACTION: Interim rule. 

SUMMARY: DoD, GSA, and NASA are 

issuing an interim rule amending the 

Federal Acquisition Regulation (FAR) to 

implement a section of the National 

Defense Authorization Act for Fiscal 

Year 2017 that addresses measures 

against persons involved in activities 

that violate arms control treaties or 

agreements with the United States. 

DATES:

Effective: June 15, 2018. 

Comment Date: Interested parties 

should submit written comments to the 

Regulatory Secretariat Division at one of 

the addresses shown below on or before 

August 14, 2018 to be considered in the 

formation of the final rule. 

ADDRESSES: Submit comments in 

response to FAC 2005–99, FAR Case 

2017–018, by any of the following 

methods: 

• Regulations.gov: http://

www.regulations.gov. Submit comments 

via the Federal eRulemaking portal by 

searching for ‘‘FAR Case 2017–018.’’ 

Select the link ‘‘Comment Now’’ that 

corresponds with ‘‘FAR Case 2017– 

018.’’ Follow the instructions provided 

on the screen. Please include your 

name, company name (if any), and 

‘‘FAR Case 2017–018’’ on your attached 

document. 

• Mail: General Services 

Administration, Regulatory Secretariat 

Division (MVCB), ATTN: Ms. Lois 

Mandell, 1800 F Street NW, 2nd Floor, 

Washington, DC 20405. 

Instructions: Please submit comments 

only and cite FAC 2005–99, FAR Case 

2017–018, in all correspondence related 

to this case. All comments received will 

be posted without change to http://

www.regulations.gov, including any 

personal and/or business confidential 

information provided. To confirm 

receipt of your comment(s), please 

check www.regulations.gov, 

approximately two to three days after 

submission to verify posting (except 

allow 30 days for posting of comments 

submitted by mail). 

FOR FURTHER INFORMATION CONTACT: Ms. 

Cecelia L. Davis, Procurement Analyst, 

at 202–219–0202 for clarification of 

content. For information pertaining to 

status or publication schedules, contact 

the Regulatory Secretariat Division at 

202–501–4755. Please cite FAC 2005– 

99, FAR Case 2017–018. 

SUPPLEMENTARY INFORMATION: 

I. Background 

This interim rule amends the FAR to 

implement a section of the National 

Defense Authorization Act (NDAA) for 

Fiscal Year 2017 that addresses 

measures against persons involved in 

activities that violate arms control 

treaties or agreements with the United 

States. This rule amends FAR part 9, 

Contractor Qualifications, and adds a 

provision at FAR 52.209–13 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. 

The President submits annually to 

Congress a report prepared by the 

Secretary of State with the concurrence 

of the Director of Central Intelligence 

and in consultation with the Secretary 

of Defense, the Secretary of Energy, and 

the Chairman of the Joint Chiefs of Staff, 

on the status of United States policy and 

actions with respect to arms control, 

nonproliferation, and disarmament, 

pursuant to section 403 of the Arms 

Control and Disarmament Act (22 U.S.C. 

2593a). In this report, the Secretary of 

State assesses adherence to and 

compliance with arms control, 

nonproliferation, and disarmament 

agreements and commitments by the 

United States and other countries. This 

report is submitted in unclassified form, 

with classified annexes, as appropriate. 

The Department of State’s most recent 

unclassified report submitted in April 

2018 to Congress is available at https:// 

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

The Secretary of the Treasury is 

required to submit to the appropriate 

Congressional committees a report, 

consistent with the protection of 

intelligence sources and methods, 

identifying every person with respect to 

whom there is credible information 

indicating that the person is— 

• An individual who is a citizen, 

national, or permanent resident of, or an 

entity organized under the laws of, a 

noncompliant country; and 


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• Has engaged in any activity that 

contributed to or is a significant factor 

in the President’s or the Secretary of 

State’s determination that such country 

is noncompliant. 

The Secretary of the Treasury also 

identifies any person that has provided 

material support for such noncompliance to a person engaged in the 

noncompliant activities. This 

information will be posted, as 

appropriate and consistent with the 

protection of intelligence sources and 

methods, as an exclusion record in the 

System for Award Management (SAM) 

database. If the contractor is on the SAM 

Exclusions list, the contractor may not 

be awarded contracts, including those 

under the simplified acquisition 

threshold (SAT) or for commercial items 

(see FAR 9.405 and 17.207), and 

contracts may not be renewed or 

extended. 

With some exceptions, the head of 

any executive agency is prohibited from 

entering into, renewing, or extending a 

contract for the procurement of products 

or services from any person so 

identified in a report under subsection 

(a) of 22 U.S.C. 2593e. 

II. Discussion and Analysis 

This interim rule amends the FAR to 

add a new section, FAR 9.109, to 

address the prohibition on contracting 

with an entity involved in activities that 

violate arms control treaties or 

agreements with the United States. In 

addition to citation of the statute (22 

U.S.C. 2593e) and the contracting 

prohibition therein, FAR 9.109 

includes— 

• The statutory exception from the 

contracting prohibition for the 

procurement of products or services 

along a major route of supply to a zone 

of active combat or a major contingency 

operation; 

• Discussion of offeror certification 

and the remedies for submission of a 

false certification; and 

• Prescription for use of the 

certification provision in each 

solicitation for the acquisition of 

products or services (including 

construction) that exceeds the SAT, 

other than solicitations for the 

acquisition of commercial items. 

The interim rule includes a provision 

at FAR 52.209–13, Violation of Arms 

Control Treaties or Agreements— 

Certification, to implement the statutory 

requirement for a certification from each 

offeror that the offeror, and any entity 

owned or controlled by the offeror, has 

not engaged in any activity that 

contributed to or is a significant factor 

in the President’s or the Secretary of 

State’s determination that such country 

is not in full compliance with its 

obligations undertaken in all arms 

control, nonproliferation, and 

disarmament agreements or 

commitments to which the United 

States is a participating state (subsection 

(a)(1)(A)(ii) of 22 U.S.C. 2593e). The 

provision also provides procedures to 

assist offerors in using the Secretary of 

State report as necessary to complete the 

certification. Initially, in this interim 

rule, this certification will not be 

included in the annual representations 

and certifications, because 

implementation considerations that will 

ensure minimum burden to prospective 

contractors are in development. The 

certification is not required for 

acquisitions under the SAT or for 

acquisition of commercial items, but if 

a contractor’s activities related to 

violations of arms control treaties 

results in the contractor being added to 

the SAM Exclusions list, the contractor 

may not be awarded contracts, 

including those under the SAT or for 

commercial items. The rule also 

establishes that the remedies for 

rendering a false certification are 

debarment or suspension for not less 

than 2 years or termination of any 

contract resulting from the false 

certification. 

The Government will not consider the 

offer of an offeror that has not provided 

a certification in paragraph (b)(1) of the 

provision at 52.209–13, unless the 

offeror provides with its offer 

information that the President of the 

United States has waived application 

under 22 U.S.C. 2593e(d) or (e) or 

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). 

III. Applicability to Contracts at or 

Below the Simplified Acquisition 

Threshold and for Commercial Items, 

Including Commercially Available Offthe-Shelf Items 

Consistent with 41 U.S.C. 1905–1907, 

DoD, GSA, and NASA do not intend to 

apply the certification required by 22 

U.S.C. 2593e to contracts at or below the 

SAT, or to contracts for the acquisition 

of commercial items, including 

commercially available off-the-shelf 

(COTS) items. However, when acquiring 

products or services (including 

construction) the Government is still 

prohibited from contracting with 

entities listed as excluded in the System 

for Award Management database. 

A. Applicability to Contracts at or Below 

the Simplified Acquisition Threshold. 

41 U.S.C. 1905 governs the 

applicability of laws to contracts or 

subcontracts in amounts not greater 

than the SAT. It is intended to limit the 

applicability of laws to such contracts or 

subcontracts. 41 U.S.C. 1905 provides 

that if a provision of law contains 

criminal or civil penalties, or if the FAR 

Council makes a written determination 

that it is not in the best interest of the 

Federal Government to exempt contracts 

or subcontracts at or below the SAT, the 

law will apply to them. This law does 

not contain criminal or civil penalties 

and the FAR Council does not intend to 

make a written determination. 

Therefore, the certification required by 

this rule will only be included in 

solicitations that exceed the SAT. 

B. Applicability to Contracts for the 

Acquisition of Commercial Items, 

Including COTS Items 

41 U.S.C. 1906 governs the 

applicability of laws to contracts and 

subcontracts for the acquisition of 

commercial items, and is intended to 

limit the applicability of laws to 

contracts and subcontracts for the 

acquisition of commercial items. 41 

U.S.C. 1906 provides that if a provision 

of law contains criminal or civil 

penalties, or if the FAR Council makes 

a written determination that it is not in 

the best interest of the Federal 

Government to exempt commercial item 

contracts, the provision of law will 

apply to contracts and subcontracts for 

the acquisition of commercial items. 

Likewise, 41 U.S.C. 1907 governs the 

applicability of laws to COTS items, and 

provides the Administrator for Federal 

Procurement Policy with the decision 

authority to determine that it is in the 

best interest of the Federal Government 

to apply a provision of law to 

acquisitions of COTS items. The FAR 

Council and the Administrator for 

Federal Procurement Policy do not 

intend to make such determinations, 

and the certification required by the 

statute will not be included in contracts 

and subcontracts for the acquisitions of 

commercial items, including COTS 

items. 

IV. Executive Orders 12866 and 13563 

Executive Orders (E.O.s) 12866 and 

13563 direct agencies to assess all costs 

and benefits of available regulatory 

alternatives and, if regulation is 

necessary, to select regulatory 

approaches that maximize net benefits 

(including potential economic, 

environmental, public health and safety 

effects, distributive impacts, and 

equity). E.O. 13563 emphasizes the 

importance of quantifying both costs 

and benefits, of reducing costs, of 

harmonizing rules, and of promoting 

flexibility. This is a significant 


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regulatory action and, therefore, was 

subject to review under section 6(b) of 

E.O. 12866, Regulatory Planning and 

Review, dated September 30, 1993. This 

rule is not a major rule under 5 U.S.C. 

804. 

V. Executive Order 13771 

This interim rule is not subject to E.O. 

13771, Reducing Regulation and 

Controlling Regulatory Costs, because 

this rule is issued with respect to a 

national security function of the United 

States. See section 4(a) of E.O. 13771. 

VI. Regulatory Flexibility Act 

DoD, GSA, and NASA do not expect 

this rule to have a significant economic 

impact on a substantial number of small 

entities within the meaning of the 

Regulatory Flexibility Act, 5 U.S.C. 601 

et seq. Nevertheless, an Initial 

Regulatory Flexibility Analysis (IRFA) 

has been performed, and is summarized 

as follows: 

This rule implements section 1290 of the 

National Defense Authorization Act for Fiscal 

Year 2017, codified at 22 U.S.C. 2593e. 

The objective of the rule is to prohibit 

award to offerors that violate arms control 

treaties or agreements with the United States, 

or own or control entities that do so; and 

terminate contractors, and suspend or debar 

offerors and contractors that have provided 

false certifications regarding such violations. 

The statutes which are the legal basis for the 

FAR are 40 U.S.C. 121(c), 10 U.S.C. Chapter 

137, and 51 U.S.C. 20113. 

Using Federal Procurement Data System 

(FPDS) data for FY 2016, this rule will apply 

to 7,616 small entities that are required to fill 

out the required certification. 

This rule will require certification from 

each offeror that submits an offer in response 

to a Government solicitation that exceeds the 

simplified acquisition threshold (SAT) and is 

not for the acquisition of a commercial item, 

including commercially available off-theshelf (COTS) items. Initially, in this interim 

rule, this certification will not be included in 

the annual representations and certifications, 

because implementation considerations that 

will ensure minimum burden to prospective 

contractors are in development. 

The rule does not duplicate, overlap, or 

conflict with any other Federal rules. 

DoD, GSA, and NASA considered whether 

to apply the certification provision to 

contracts at or below the SAT and to the 

acquisition of commercial items, including 

COTS items, or to exempt such acquisitions 

in accordance with 41 U.S.C. 1905–1907. 

DoD, GSA, and NASA did not sign 

determinations that the provision should 

apply to contracts at or below the SAT and 

to the acquisition of commercial items, 

including COTS items, thus minimizing the 

impact on small business to the extent 

permitted by law. 

The Regulatory Secretariat Division 

has submitted a copy of the IRFA to the 

Chief Counsel for Advocacy of the Small 

Business Administration. A copy of the 

IRFA may be obtained from the 

Regulatory Secretariat Division. DoD, 

GSA, and NASA invite comments from 

small business concerns and other 

interested parties on the expected 

impact of this rule on small entities. 

DoD, GSA, and NASA will also 

consider comments from small entities 

concerning the existing regulations in 

subparts affected by the rule in 

accordance with 5 U.S.C. 610. Interested 

parties must submit such comments 

separately and should cite 5 U.S.C. 610 

(FAR Case 2017–018), in 

correspondence. 

VII. Paperwork Reduction Act 

The Paperwork Reduction Act of 1995 

(44 U.S.C. 3501 et seq.) (PRA) provides 

that an agency generally cannot conduct 

or sponsor a collection of information, 

and no person is required to respond to 

nor be subject to a penalty for failure to 

comply with a collection of information, 

unless that collection has obtained 

Office of Management and Budget 

(OMB) approval and displays a 

currently valid OMB Control Number. 

DoD, GSA, and NASA requested and 

OMB authorized emergency processing 

of an information collection involved in 

this rule, as OMB Control Number 

9000–0198, consistent with 5 CFR 

1320.13. DoD, GSA, and NASA have 

determined the following conditions 

have been met: 

a. The collection of information is 

needed prior to the expiration of time 

periods normally associated with a 

routine submission for review under the 

provisions of the Paperwork Reduction 

Act. 

b. The collection of information is 

essential to the mission of the agencies 

to ensure the Federal Government does 

not award contracts to offerors, and any 

entity owned or controlled by the 

offeror that has engaged in any activity 

that violates arms control treaties or 

agreements with the United States. 

c. The use of normal clearance 

procedures would prevent the collection 

of information from contractors, for 

national security purposes, as discussed 

in Section VIII of this preamble. 

Section 1290 of Public Law 114–328 

(codified at 22 U.S.C. 2593e) went into 

effect on December 23, 2016. The 

implementation of this FAR case will 

protect against doing business with 

entities that engage in any activity that 

contributed to or is a significant factor 

in a country’s failure to comply with 

arms control treaties or agreements with 

the United States. This action is 

necessary because of statutory 

requirements relating to a national 

security function of the United States. 

Moreover, DoD, GSA, and NASA 

cannot comply with the normal 

clearance procedures because public 

harm is reasonably likely to result if 

current clearance procedures are 

followed. 

DoD, GSA, and NASA intend to 

provide separate 60-day notice in the 

Federal Register requesting public 

comment on the information collections 

contained within this rule. 

Some numbers below are rounded. 

Agency: DoD, GSA, and NASA. 

Type of Information Collection: New 

Collection. 

Title of Collection: Violations of Arms 

Control Treaties or Agreements with the 

United States. 

Affected Public: Private Sector— 

Business. 

Total Estimated Number of 

Respondents: 11,634. 

Average Responses per Respondents: 

8.6. 

Total Estimated Number of 

Responses: 99,796. 

Preparation Hours per Response: .4 

hours. 

Total Annual Time Burden: 40,478. 

OMB Control Number: 9000–0198. 

The public reporting burden for this 

collection of information consists of a 

certification that the offeror and no 

entity owned or controlled by the 

offeror has engaged in any activity that 

contributes to the violation of arms 

control treaties or agreements with the 

United States. Public reporting burden 

for this collection of information is 

estimated to average .4 hours per 

response, including the time for 

reviewing instructions, searching 

existing data sources, gathering and 

maintaining the data needed, and 

completing and reviewing the collection 

information. 

In the subsequent 60 day notice 

published by DoD, GSA, and NASA will 

invite public comments. 

VIII. Determination To Issue an Interim 

Rule 

A determination has been made under 

the authority of the Secretary of Defense 

(DoD), the Administrator of General 

Services (GSA), and the Administrator 

of the National Aeronautics and Space 

Administration (NASA) that urgent and 

compelling reasons exist to promulgate 

this interim rule without prior 

opportunity for public comment. This 

action is necessary because of statutory 

requirements relating to a national 

security function of the United States. 

Section 1290 of Public Law 114–328 

(codified at 22 U.S.C. 2593e) went into 

effect on December 23, 2016. The 

implementation of this FAR case will 

protect against doing business with 


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28148 Federal Register / Vol. 83, No. 116 / Friday, June 15, 2018 / Rules and Regulations 

entities that engage in any activity that 

contributed to or is a significant factor 

in a country’s failure to comply with 

arms control treaties or agreements with 

the United States. Arms control, 

nonproliferation, and disarmament 

agreements can limit or reduce threats 

to the security of the United States and 

our allies, contributing to transparency 

and stability on a global and regional 

scale. Failure of participating countries 

to comply with the obligations and 

adhere to the commitments they have 

undertaken can present serious national 

security challenges. Therefore, robust 

compliance enforcement is a critical 

aspect of U.S. national security 

planning. However, pursuant to 41 

U.S.C. 1707 and FAR 1.501–3(b), DoD, 

GSA, and NASA will consider public 

comments received in response to this 

interim rule in the formation of the final 

rule. 

List of Subjects in 48 CFR Parts 1, 9, 12, 

13, and 52 

Government procurement. 

Dated: June 7, 2018. 

William F. Clark, 

Director, Office of Government-wide 

Acquisition Policy, Office of Acquisition 

Policy, Office of Government-wide Policy. 

Therefore, DoD, GSA, and NASA 

amend 48 CFR parts 1, 9, 12, 13, and 52 

as set forth below: 

■ 1. The authority citation for 48 CFR 

parts 1, 9, 12, 13, and 52 continues to 

read as follows: 

Authority: 40 U.S.C. 121(c); 10 U.S.C. 

chapter 137; and 51 U.S.C. 20113. 

PART 1—FEDERAL ACQUSITION 

REGULATION SYSTEM 

1.106 [Amended] 

■ 2. Amend section 1.106, in the table 

following the introductory text, by 

adding in numerical sequence, FAR 

segment ‘‘52.209–13’’ and its 

corresponding OMB control number 

‘‘9000–0198’’. 

PART 9—CONTRACTOR 

QUALIFICATIONS 

■ 3. Add sections 9.109, 9.109–1, 9.109– 

2, 9.109–3, 9.109–4, and 9.109–5 to read 

as follows: 

9.109 Prohibition on contracting with an 

entity involved in activities that violate arms 

control treaties or agreements with the 

United States. 

9.109–1 Authority. 

This section implements 22 U.S.C. 

2593e. 

9.109–2 Prohibition. 

Contracting officers shall not award, 

renew, or extend a contract for the 

procurement of products or services 

with an entity identified as excluded in 

the System for Award Management 

database, specifically for this subpart, 

on the basis of involvement in activities 

that violate arms control treaties or 

agreements with the United States. 

9.109–3 Exception. 

The prohibition in 9.109–2 does not 

apply to contracts for the procurement 

of products or services along a major 

route of supply to a zone of active 

combat or major contingency operation, 

as specified in statute or by the 

cognizant Combatant Commander, in 

consultation with the Chief of Mission. 

As of May 10, 2018, countries along the 

major route of supply to support 

operations in Afghanistan are 

Afghanistan, Georgia, the Kyrgyz 

Republic, Pakistan, the Republic of 

Armenia, the Republic of Azerbaijan, 

the Republic of Kazakhstan, the 

Republic of Tajikistan, the Republic of 

Uzbekistan, and Turkmenistan. 

9.109–4 Certification by the offeror. 

(a) In order to be eligible for contract 

award, an offeror is required to— 

(1)(i) Certify that 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) Similarly certify with regard to 

any entity owned or controlled by the 

offeror; or 

(2) Provide with its offer information 

that the President of the United States 

has— 

(i) Waived application under 22 

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). 

(b) If certifying in accordance with 

52.209–13(b)(1), the Offeror is required 

to submit the certification with the offer. 

It is not included in the annual 

representations and certifications in the 

System for Award Management 

database. 

(c) The contracting officer may rely on 

an offeror’s certification unless the 

contracting officer has reason to 

question the certification. 

(d) An offeror that falsely certifies 

under 52.209–13 will be subject to such 

remedies as suspension or debarment 

for a period of not less than 2 years, 

subject to the procedures set forth in 

subpart 9.4 (including 9.406–1 or 9.407– 

1), or termination of any contract 

resulting from the false certification. 

9.109–5 Solicitation provision. 

Unless the exception at 9.109–3 

applies, the contracting officer shall 

include the provision at 52.209–13, 

Violation of Arms Control Treaties or 

Agreements—Certification, in each 

solicitation for the acquisition of 

products or services (including 

construction) that exceeds the 

simplified acquisition threshold, other 

than solicitations for the acquisition of 

commercial items. 

■ 4. Amend section 9.405 by adding a 

sentence to the end of paragraph (b) to 

read as follows: 

9.405 Effect of listing. 

* * * * * 

(b) * * * In addition, agencies shall 

not extend contracts with contractors 

that have been declared ineligible 

pursuant to 22 U.S.C. 2593e. 

* * * * * 

■ 5. Amend section 9.406–4 by revising 

paragraphs (a)(1)(i) and (ii) and adding 

paragraph (a)(1)(iii) to read as follows: 

9.406–4 Period of debarment. 

(a)(1) * * * 

(i) Debarment for violation of the 

provisions of 41 U.S.C. chapter 81, 

Drug-Free Workplace (see 23.506) may 

be for a period not to exceed 5 years; 

(ii) Debarments under 9.406–2(b)(2) 

shall be for 1 year unless extended 

pursuant to paragraph (b) of this section; 

and 

(iii) Debarments pursued as a remedy 

under 9.109–4(d), for a false 

certification regarding violations of arms 

control treaties or agreements with the 

United States, shall be for a period of 

not less than 2 years. 

* * * * * 

PART 12—ACQUISITION OF 

COMMERCIAL ITEMS 

■ 6. Amend section 12.503 by— 

■ a. Redesignating paragraphs (b)(1) 

through (3) as paragraphs (b)(2) through 

(4), respectively; and 


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■ 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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