Common use of USACE Clause in Contracts

USACE. 1. Shall not authorize implementation of an individual Undertaking (Work Item) until Section 106 review is completed pursuant to this Agreement. 2. Shall notify and consult with the SHPO of jurisdiction, appropriate Federally-recognized Tribes, and other Consulting Parties. Consultations may include face-to-face meetings, as well as communications by U.S. mail, e-mail, facsimile, and/or telephone. Times and places of meetings, as well as an agenda for meetings, will be developed with mutual acceptance and done in a timely manner. 3. Shall maintain the POC List (Appendix B) and will distribute it annually as part of the consultation, to the Primary POCs. USACE will incorporate any changes to the POC listing as derived from the steps below into the annual distribution, as well as individual updates received in the interim. a. USACE district staff engaged in consultation who receive a returned email, returned letter, or notification of a disconnected phone line, will follow up with the relevant Consulting Party to re-establish the appropriate point of contact. This will be communicated to necessary parties upon clarification and in the annual POC update. b. At a minimum the Mississippi Valley Division (MVD) Cultural staff will make a round of phone calls to confirm the current POC listed for each of the Federally- recognized Tribes contained in the POC listing. c. USACE District Archaeologists will ensure that the contact information for the SHPOs within their district have not changed. 4. Shall consult with any Federally-recognized Tribe on a government-to-government basis in recognition of its sovereign status, whether a signatory to this Agreement or not, but particularly regarding sites that may have traditional, religious, and/or cultural importance to Federally-recognized Tribes. In meeting its federal trust responsibility, USACE alone shall conduct all government-to-government consultation with Federally-recognized Tribes. 5. Shall be responsible for determining the APE, identifying historic properties located within the APE, providing NRHP eligibility determinations, and findings of effect, in consultation with SHPO, appropriate Federally-recognized Tribes, and other Consulting Parties. 6. Shall ensure all Cultural Resources review is conducted by qualified professional staff as outlined in Stipulation VI.A. 2. 7. Shall ensure that all documentation generated as part of the NHPA process resulting from these Undertakings shall be consistent with applicable Standards (State and Federal) (Stipulation VI.A) and confidentiality provisions outlined in Stipulation IV. 8. Shall use federal staff who meet the Professional Qualifications Standards as set forth in the Federal Register at 48 Fed. Reg., Vol. 190, 44716-01 (September 29, 1983), as amended (Qualified Staff) in applying the Programmatic Allowances (Allowances) listed in Appendix D, defining APE boundaries, completing identification and evaluation of all historic properties, and making determinations of effects. 9. Shall ensure, to the greatest extent practicable, that the SHPO of jurisdiction and the appropriate Federally-recognized Tribe(s) are consulted at the same time. And will, prior to submitting any determinations of eligibility and/or finding of effect as part of the consultation, review National Register eligibility recommendations provided by a cultural resources contractor and make its own determination. 10. USACE contractors shall not consult directly with any SHPO or Tribal Historic Preservation Officer (THPO), Consulting Tribes, or Federally-recognized Tribes. Consultation with SHPO/THPO, Consulting Tribes, or Federally-recognized Tribes remains a federal responsibility. This is/will be documented in any SOW for Cultural Resource Management activities or other construction work. 11. Shall, when authorizing individual Undertakings requiring environmental/cultural conditions pursuant to this Agreement, include all stipulations and conditions negotiated as part of the Section 106 Process. USACE will ensure that this information is communicated to the NFS and USACE contractor, and will be available for technical questions related to its implementation. This information is conveyed through the Buildability, Constructability, Operability, Environmental and Sustainability Reviews (BCOES Process), per Engineering Regulation 415-1-11, leading to solicitation. 12. Shall ensure that a written record of all stipulations and conditions pursuant to this Agreement regarding any Work Item location for which a particular NFS has jurisdiction are provided to the NFS, and USACE will be available to the NFS technical questions related to its implementation. Additionally, USACE shall provide the NFS with information and technical guidance on the treatment of any historic properties, if applicable. 13. Shall ensure that all documentation (e.g., identification, evaluation, and mitigation reports) resulting from Undertakings reviewed pursuant to this Agreement is consistent with the SHPO of jurisdiction and appropriate Consulting Tribes’ Tribal guidelines, per Stipulation VI A. 3, and the confidentiality provisions of 54 U.S.C. § 307103 and 36 CFR § 800.11(c), per Stipulation IV A-E. 14. Shall ensure that, on federal and tribal land, that the provisions of the Native American ▇▇▇▇▇▇ Protection and Repatriation Act (NAGPRA) (25 U.S.C. §3001-3013, 18 U.S.C. § 1170) and the Archaeological Resources Protection Act of 1979 (ARPA)(16 U.S.C. §470aa – 470mm) are followed. 15. Shall ensure that the provisions of the appropriate states’ burial laws, including specific authorities outlined in Stipulation IX- Treatment of Human Remains and Items of Religious and Cultural Importance are provided to the NFS. USACE will provide any necessary technical guidance on the implementation of these laws, in support of the Designated Authority on NFS, state, or private land, subject to this agreement.

USACE. 1. Shall not authorize implementation of an individual Undertaking (Work Item) until Section 106 review is completed pursuant to this Agreement. 2. Shall notify and consult with the SHPO of jurisdiction, appropriate Federally-recognized Tribes, and other Consulting Parties. Consultations may include face-to-face meetings, as well as communications by U.S. mail, e-mail, facsimile, and/or telephone. Times and places of meetings, as well as an agenda for meetings, will be developed with mutual acceptance and done in a timely manner. 3. Shall maintain the POC List (Appendix B) and will distribute it annually as part of the consultation, to the Primary POCs. USACE will incorporate any changes to the POC listing as derived from the steps below into the annual distribution, as well as individual updates received in the interim. a. USACE district staff engaged in consultation who receive a returned email, returned letter, or notification of a disconnected phone line, will follow up with the relevant Consulting Party to re-establish the appropriate point of contact. This will be communicated to necessary parties upon clarification and in the annual POC update. b. At a minimum the Mississippi Valley Division (MVD) Cultural staff will make a round of phone calls to confirm the current POC listed for each of the Federally- recognized Tribes contained in the POC listing. c. USACE District Archaeologists will ensure that the contact information for the SHPOs within their district have not changed. 4. Shall consult with any Federally-recognized Tribe on a government-to-government basis in recognition of its sovereign status, whether a signatory to this Agreement or not, but particularly regarding sites that may have traditional, religious, and/or cultural importance to Federally-recognized Tribes. In meeting its federal trust responsibility, USACE alone shall conduct all government-to-government consultation with Federally-recognized Tribes. 5. Shall be responsible for determining the APE, identifying historic properties located within the APE, providing NRHP eligibility determinations, and findings of effect, in consultation with SHPO, appropriate Federally-recognized Tribes, and other Consulting Parties. 6. Shall ensure all Cultural Resources review is conducted by qualified professional staff as outlined in Stipulation VI.A. 2. 7. Shall ensure that all documentation generated as part of the NHPA process resulting from these Undertakings shall be consistent with applicable Standards (State and Federal) (Stipulation VI.A) and confidentiality provisions outlined in Stipulation IV. 8. Shall use federal staff who meet the Professional Qualifications Standards as set forth in the Federal Register at 48 Fed. Reg., Vol. 190, 44716-01 (September 29, 1983), as amended (Qualified Staff) in applying the Programmatic Allowances (Allowances) listed in Appendix D, defining APE boundaries, completing identification and evaluation of all historic properties, and making determinations of effects. 9. Shall ensure, to the greatest extent practicable, that the SHPO of jurisdiction and the appropriate Federally-recognized Tribe(s) are consulted at the same time. And will, prior to submitting any determinations of eligibility and/or finding of effect as part of the consultation, review National Register eligibility recommendations provided by a cultural resources contractor and make its own determination. 10. USACE contractors shall not consult directly with any SHPO or Tribal Historic Preservation Officer (THPO), Consulting Tribes, or Federally-recognized Tribes. Consultation with SHPO/THPO, Consulting Tribes, or Federally-recognized Tribes remains a federal responsibility. This is/will be documented in any SOW for Cultural Resource Management activities or other construction work. 11. Shall▇▇▇▇▇, when authorizing individual Undertakings requiring environmental/cultural conditions pursuant to this Agreement, include all stipulations and conditions negotiated as part of the Section 106 Process. USACE will ensure that this information is communicated to the NFS and USACE contractor, and will be available for technical questions related to its implementation. This information is conveyed through the Buildability, Constructability, Operability, Environmental and Sustainability Reviews (BCOES Process), per Engineering Regulation 415-1-11, leading to solicitation. 12. Shall ▇▇▇▇▇ ensure that a written record of all stipulations and conditions pursuant to this Agreement regarding any Work Item location for which a particular NFS has jurisdiction are provided to the NFS, and USACE will be available to the NFS technical questions related to its implementation. Additionally, USACE shall provide the NFS with information and technical guidance on the treatment of any historic properties, if applicable. 13. Shall ensure that all documentation (e.g., identification, evaluation, and mitigation reports) resulting from Undertakings reviewed pursuant to this Agreement is consistent with the SHPO of jurisdiction and appropriate Consulting Tribes’ Tribal guidelines, per Stipulation VI A. 3, and the confidentiality provisions of 54 U.S.C. § 307103 and 36 CFR § 800.11(c), per Stipulation IV A-E. 14. Shall ensure that, on federal and tribal land, that the provisions of the Native American ▇▇▇▇▇▇ Protection and Repatriation Act (NAGPRA) (25 U.S.C. §3001-3013, 18 U.S.C. § 1170) and the Archaeological Resources Protection Act of 1979 (ARPA)(16 U.S.C. §470aa – 470mm) are followed. 15. Shall ensure that the provisions of the appropriate states’ burial laws, including specific authorities outlined in Stipulation IX- Treatment of Human Remains and Items of Religious and Cultural Importance are provided to the NFS. USACE will provide any necessary technical guidance on the implementation of these laws, in support of the Designated Authority on NFS, state, or private land, subject to this agreement.