Once it has been determined that a project has become a Federal-aid project, several Federal requirements will apply. These requirements will apply regardless of the amount of Federal funds that are used on a project.[424] For public-private partnerships, the application of these Federal requirements becomes an issue for the private-sector partner to consider because most of these requirements do not apply to a purely privately funded project.[425]
Most of the conditions that accompany the Federal-aid highway program are intended to serve broad public policy objectives.[426] Although these requirements are meant to and do benefit society as a whole, they may also represent barriers for public-private partnerships. Specifically, the Federal requirements bring uncertainty, risk and additional cost. For example, before Federal funds can be made available to the public-private partnership project, the Federal government may have to broadly assess the environmental consequences of the project. Prevailing wage rules and other Federal mandates may also apply. Taken together, the highway construction industry asserts these requirements significantly increase the cost of building a project.[427]
Some suggest that a de minimis provision be added in title 23, United States Code, to limit the application of Federal requirements when Federal funding is below a certain threshold.[428] Traditional highway funding has comprised between 80 to 100 percent of the total cost of a project. With public-private partnerships, the Federal contribution typically will be less than the traditional percentage of the total project cost. As previously stated, any amount of Federal funding-even a dollar-can trigger the application of Federal requirements. A de minimis provision would limit the application of some or all Federal requirements when the level of Federal funding falls below a certain level on a project.[429] It is thought that such a provision would encourage a greater level of private-sector participation by reducing the time and costs that may be added by the Federal requirements. Furthermore, by encouraging the use of private-sector funds, Federal and State dollars could be spent on additional transportation projects.
As has been discussed, there are a number of Federal requirements that can apply to a Federal project. What follows is a brief discussion of some of these requirements.