Dear Mr. Levell:
You requested the opinion of this office concerning the New Orleans Aviation Board ("NOAB"). You advised that NOAB is constructing improvements to the New Orleans International Airport ("NOIA"), which improvements are being funded from several sources, including the Transportation Infrastructure Model for Economic Development ("TIME") monies and the Passenger Facility Charge ("PFC"), codified at 49 U.S.C.A. 1513.
The question presented is whether NOAB can borrow for an approved period of time, TIME funds for its PFC projects in an amount that exceeds the statutory allocation for the TIME projects.
The Transportation Trust Fund ("TTF") was created by Article VII, Section 27 of the Louisiana Constitution as a permanent trust fund into which are deposited the excess avails of taxes on gasoline, motor fuels and special fuels. The monies in the TTF are to be used solely for roads and bridges of the state and federal highway system, the Statewide Flood-Control Program, ports, airports, transit, state police for traffic control purposes, and the Parish Transportation Fund.
Within the TTF, the TIME Account was created pursuant to R.S. 47:820.1, et seq. Monies from a four cents per gallon tax on gasoline, motor fuels and special fuels, effective January 1, 1990, is the source of revenues of the TIME Account. With limited exception, monies in the TIME Account and the proceeds of the bonds secured by the four cents tax, may only be used for the 16 listed projects and in the amounts specified. R.S.47:820.2(B) lists and categorizes the projects as (a) 11 highway projects totalling $1,044 million; (b) 3 bridges totalling $142 million; (c) the Port of New Orleans in the amount of $100 million; and (d) the New Orleans International Airport in the amount of $75 million.
R.S. 47:820.2(E) provides as follows:
Any monies allocated for any project as specified in Subparagraphs (B)(1)(a) and (b) of this Section not needed for such project may be reallocated for the completion of any other project or projects specified. Any monies not needed for the completion of such projects shall be used for purposes not inconsistent with the Transportation Trust Fund.
In other words, any monies not needed for a highway or bridge project may be reallocated for the completion of any other specified project, not necessarily a highway or bridge project, provided that the use is consistent with the Transportation Trust Fund. Thus it would appear that if there is a finding that there are excess monies not needed for a particular TIME highway or bridge project, those monies could be used by the NOIA. As the projects specified for highway and bridge purposes are allocated to the Department of Transportation and Development, the determination of whether there are any monies available to be used for another project should be made by DOTD. Of course, in the event a determination is made that there are monies available for use on another project, the project would have to be approved by the legislature in accordance with R.S. 47:820.2(D).
NOIA contemplates that it would borrow approximately $36.5 million of excess TIME monies to be used for PFC construction projects at the NOPIA and it would repay the TIME Account from PFC revenue. While R.S. 47:820.2(E) would allow for excess monies to be used for NOIA in the event a determination is made that excess funds are available, there is no statutory authorization to allow NOAB to borrow the money with the intent to repay the TIME Account. Furthermore, any such borrowing may violate the provisions of Article VII, Section 14 of the Louisiana Constitution.
Trusting this adequately responds to your inquiry, I remain,
Yours very truly,
RICHARD P. IEYOUB Attorney General
BY: MARTHA S. HESS Assistant Attorney General
RPI/MSH/jav 2900m