[Senate Report 117-113]
[From the U.S. Government Publishing Office]


                                                  Calendar No. 370

117th Congress}                                           { Report
                                 SENATE
  2d Session  }                                           { 117-113

======================================================================
 
                        AIR AMERICA ACT OF 2021

                               __________

                              R E P O R T

                                 OF THE

                   COMMITTEE ON HOMELAND SECURITY AND

                          GOVERNMENTAL AFFAIRS

                          UNITED STATES SENATE

                              TO ACCOMPANY

                                 S. 407

           TO PROVIDE REDRESS TO THE EMPLOYEES OF AIR AMERICA

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


     May 19 (legislative day May 17), 2022.--Ordered to be printed
     
                               __________

                    U.S. GOVERNMENT PUBLISHING OFFICE                    
                          WASHINGTON : 2022                     
          
-----------------------------------------------------------------------------------   
   
        COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS

                   GARY C. PETERS, Michigan, Chairman
THOMAS R. CARPER, Delaware           ROB PORTMAN, Ohio
MAGGIE HASSAN, New Hampshire         RON JOHNSON, Wisconsin
KYRSTEN SINEMA, Arizona              RAND PAUL, Kentucky
JACKY ROSEN, Nevada                  JAMES LANKFORD, Oklahoma
ALEX PADILLA, California             MITT ROMNEY, Utah
JON OSSOFF, Georgia                  RICK SCOTT, Florida
                                     JOSH HAWLEY, Missouri

                   David M. Weinberg, Staff Director
                    Zachary I. Schram, Chief Counsel
              Devin M. Parsons, Professional Staff Member
                Pamela Thiessen, Minority Staff Director
            Sam J. Mulopulos, Minority Deputy Staff Director
Amanda H. Neely, Minority Director of Governmental Affairs and General 
                                Counsel
                     Laura W. Kilbride, Chief Clerk
                     


                                                  Calendar No. 370

117th Congress}                                           { Report
                                 SENATE
  2d Session  }                                           { 117-113

======================================================================                     

                        AIR AMERICA ACT OF 2021

                                _______
                                

    May 19 (legislative day of May 17), 2022.--Ordered to be printed

                                _______
                                

 Mr. Peters, from the Committee on Homeland Security and Governmental 
                    Affairs, submitted the following

                              R E P O R T

                         [To accompany S. 407]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Homeland Security and Governmental 
Affairs, to which was referred the bill (S. 407) to provide 
redress to the employees of Air America, having considered the 
same, reports favorably thereon with an amendment and 
recommends that the bill, as amended, do pass.

                                CONTENTS

                                                                   Page
  I. Purpose and Summary..............................................1
 II. Background and Need for the Legislation..........................2
III. Legislative History..............................................3
 IV. Section-by-Section Analysis of the Bill, as Reported.............4
  V. Evaluation of Regulatory Impact..................................4
 VI. Congressional Budget Office Cost Estimate........................5
VII. Changes in Existing Law Made by the Bill, as Reported............8

                         I. PURPOSE AND SUMMARY

    S. 407, the Air America Act of 2022, would qualify the 
service of employees of Air America, Inc., between 1950 and 
1976 as creditable for retirement benefits under the Civil 
Service Retirement System (CSRS). Employees of Air America 
served the U.S. government in a covert capacity to help achieve 
foreign policy objectives during this time period, throughout 
the Cold War, Korean War, and Vietnam War. The employees lost 
access to retirement in 1985 when the Office of Personnel 
Management (OPM) made a change to the Federal Personnel Manual 
impacting federal contractors, which is how Air America 
operated publicly. The bill provides a two-year window for Air 
America employees or their survivors to apply for retirement 
benefits, including retroactive benefits.

              II. BACKGROUND AND NEED FOR THE LEGISLATION

    In 1949, the Central Intelligence Agency (CIA) acquired Air 
America, Inc., initially for anticommunist operations in 
Asia.\1\ Between 1950 and 1976, the CIA, Department of Defense, 
and Department of State directed and managed Air America and 
its related corporate entities to carry out a number of 
humanitarian and covert missions.\2\ Air America employed over 
5,000 individuals to support various projects around the world, 
including food drops, reconnaissance, and covert operations in 
Vietnam, Korea, and the Bay of Pigs.\3\ Over 131 Americans 
employed by Air America died during this time period, mostly 
due to job-related incidents, and eight were missing in 
action.\4\
---------------------------------------------------------------------------
    \1\Senate Select Committee to Study Governmental Operations with 
Respect to Intelligence Activities, Foreign and Military Intelligence, 
Book 1 (Apr. 1976) (S. Rept. 94-755) (www.intelligence.senate.gov/
sites/default/files/94755_I.pdf) (accessed Mar. 16, 2022).
    \2\Id.
    \3\Office of the Director of National Intelligence, Report on the 
Retirement Benefits for Former Employees of Air America (July 2011) 
(www.air-america.org/files/documents/201107_ODNI_Report.pdf) (accessed 
Mar. 16, 2022).
    \4\Id. at 3.
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    Externally, Air America operated as a commercial entity 
that generated profits by fulfilling government contracts.\5\ 
Employees of such entities were entitled to federal retirement 
credit during the period when Air America operated. For 
example, the Federal Personnel Manual Supplement of 1978 
specified that an exclusion to federal retirement coverage 
applied to:
---------------------------------------------------------------------------
    \5\Senate Select Committee, supra, note 1, at 209.

          Employees paid on a contract or fee basis, except 
        employees who are citizens of the United States who are 
        appointed by a contract between the employees and the 
        Federal employing authority which requires their 
        personal services and are paid on the basis of units of 
        time.\6\
---------------------------------------------------------------------------
    \6\Civil Service Commission, Federal Personnel Manual Supplement 
831-1, Subchapter S2. Coverage, S2-3. Exclusions by Regulation (Nov. 
22, 1978).

    Air America dissolved in 1976, following the withdrawal of 
troops from Vietnam.\7\ Upon dissolution in 1976, Air America 
deposited around $20 million into the U.S. Treasury.\8\ Of the 
total deposited, 60 percent was apportioned to the Civil 
Service Retirement Fund due to congressional appropriations 
process requirements.\9\
---------------------------------------------------------------------------
    \7\Office of the Director of National Intelligence, supra, note 3, 
at 6.
    \8\Id. at 29; Senate Select Committee, supra, note 1, at 239; and 
Central Intelligence Agency, Liquidation Plan (1976) (www.cia.gov/
readingroom/docs/197616.pdf).
    \9\Air America, Air America Declassified: New Insights into the 
Administration of Air America as an Instrument of U.S. Foreign Policy 
and the Ongoing Legislative Effort for Proper Federal Recognition (May 
31, 2019) (air-america.org/files/documents/symposium-booklet.pdf) 
(accessed Mar. 16, 2022).
---------------------------------------------------------------------------
    In 1985, OPM changed the relevant portion of the Federal 
Personnel Manual Supplement, replacing it with a policy to 
apply retroactively that states:

          Employment under a personal services contract is 
        creditable for civil service only if the individual is 
        serving a federal function under federal supervision 
        and Congress has given the agency the authority to 
        appoint individuals by contract or OPM has specifically 
        given an agency the authority to use a contract as an 
        appointing instrument for the particular type of 
        service involved.\10\
---------------------------------------------------------------------------
    \10\Office of Personnel Management, Federal Personnel Manual 
Supplement 831-1, Subchapter S3-3(d) (Mar. 29, 1985).

    The change in OPM policy resulted in Air America employees 
losing access to federal retirement benefits, and the change 
was upheld in court.\11\ Starting in 1962 and again in 1970, 
Air America employees were offered voluntary savings plans 
options.\12\ However, declassified documents show that the CIA 
internally acknowledged that these voluntary savings options 
were only meant to be supplementary to rather than replacements 
for civil service retirement credit or the more robust 
retirement plans offered by the CIA.\13\
---------------------------------------------------------------------------
    \11\See Horner v. Acosta, 803 F.2d 687 (Fed. Cir. 1986).
    \12\Air America, supra, note 9, at 7.
    \13\Id.
---------------------------------------------------------------------------
    Congress has previously used legislative corrective action 
to protect the retirement benefits for individuals in unique 
employment scenarios while serving U.S. missions abroad. For 
example, the Foreign Service Act of 1980 included provisions to 
ensure employees' service with Radio Free Europe is creditable 
for the purpose of annuities under the Civil Service Retirement 
Acts.\14\
---------------------------------------------------------------------------
    \14\See 5 U.S.C. Sec. 8332(11); also see Comptroller General of the 
United States, Decision; Matter of James McCarger--Entitlement to Leave 
(B-204097) (www.gao.gov/assets/b-204097.pdf) (accessed Mar. 16, 2022).
---------------------------------------------------------------------------
    The structure of employment at Air America and subsequent 
impact on employee access to federal retirement has been 
complicated by the undercover nature of the work, as well as 
the covert government ownership and operation of the 
corporation. However, declassified documents pursuant to the 
Declassification Act of 2000 and additional materials the CIA 
posted online in 2017 shed more light on Air America's 
operations.\15\ The Air America Act of 2022 stems from the 
declassified information, responding to it by narrowly 
providing Air America employees and their survivors with hard-
earned federal retirement benefits for their brave service to 
critical, and oftentimes hazardous, U.S. government operations 
during the Cold War.
---------------------------------------------------------------------------
    \15\Air America, supra, note 9, at 2.
---------------------------------------------------------------------------

                        III. LEGISLATIVE HISTORY

    Senator Marco Rubio (R-FL) introduced S. 407, the Air 
America Act of 2021, on February 24, 2021, with 28 original 
cosponsors from both parties. The bill was referred to the 
Committee on Homeland Security and Governmental Affairs. Five 
Senators subsequently joined as cosponsors.
    The Committee considered S. 407 at a business meeting on 
February 2, 2022. Ranking Member Rob Portman and Chairman Gary 
Peters offered a substitute amendment to clarify that there is 
a two-year window after the bill takes effect for eligible 
individuals to apply for benefits and add a rule of 
construction to note that the bill does not set any type of 
precedent for CSRS or any successor fund, among a few other 
technical changes. The substitute amendment was adopted by 
voice vote en bloc. The bill, as amended, was ordered reported 
favorably by voice vote en bloc with Senators Peters, Carper, 
Hassan, Sinema, Rosen, Padilla, Ossoff, Portman, Lankford, 
Scott, and Hawley present.

        IV. SECTION-BY-SECTION ANALYSIS OF THE BILL, AS REPORTED

Section 1. Short title

    This section establishes the short title of the bill as the 
``Air America Act of 2022.''

Sec. 2. Air America

    Subsection (a) includes findings describing the background 
and history of Air America, Inc., and the service of Air 
America employees.
    Subsection (b) defines the terms ``affiliated company, 
``qualifying service,'' ``survivor,'' ``widow,'' ``widower,'' 
``dependent,'' and ``child'' in the context of this section.
    Subsection (c) deems any period of qualifying service as 
creditable service for the purposes of CSRS. Qualifying service 
is service performed by U.S. citizen employees of Air America 
between 1950 and 1976, as documented in attorney-certified 
corporate records.
    Subsection (d) authorizes individuals who performed 
qualifying service or survivors of such individuals to submit 
an application for retirement benefits to OPM within two years 
after the bill takes effect upon enactment. These individuals 
and survivors are entitled to the retirement benefits 
retroactively. If the individual who performed the creditable 
service became deceased before this bill's enactment, survivors 
are eligible for a survivor annuity, which is 50 to 55 percent 
of the annuity that would have been paid to the deceased 
individual.
    Subsection (e) deems the lump sum payment made by Air 
America into the U.S. Treasury, a significant amount of which 
was apportioned to the Civil Service Disability and Retirement 
Fund, as satisfying title 5 requirements related to deductions, 
contributions, and deposits.
    Subsection (f) states that nothing in the bill shall be 
construed to set any type of precedent for purposes of credit 
toward CSRS or any successor fund.
    Subsection (g) states that the bill shall take effect 30 
days after the date of the bill's enactment.

                   V. EVALUATION OF REGULATORY IMPACT

    Pursuant to the requirements of paragraph 11(b) of rule 
XXVI of the Standing Rules of the Senate, the Committee has 
considered the regulatory impact of this bill and determined 
that the bill will have no regulatory impact within the meaning 
of the rules. The Committee agrees with the Congressional 
Budget Office's statement that the bill contains no 
intergovernmental or private sector mandates as defined in the 
Unfunded Mandates Reform Act (UMRA) and would impose no costs 
on state, local, or tribal governments.

             VI. CONGRESSIONAL BUDGET OFFICE COST ESTIMATE

                                     U.S. Congress,
                               Congressional Budget Office,
                                      Washington, DC, May 13, 2022.
Hon. Gary C. Peters,
Chairman, Committee on Homeland Security and Governmental Affairs, U.S. 
        Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 407, the Air America 
Act of 2022.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Amber 
Marcellino.
            Sincerely,
                                         Phillip L. Swagel,
                                                          Director.
    Enclosure.

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    

    The bill would:
           Make former employees of Air America 
        eligible to apply for a new civilian retirement benefit 
        based on their years of service in that program
           Authorize payment of a new monthly 
        retirement benefit under the Civil Service Retirement 
        System to successful applicants
           Authorize payment of a retroactive lump sum 
        payment to successful applicants for retirement 
        benefits that would have been paid from the time of 
        first retirement eligibility
    Estimated budgetary effects would mainly stem from:
           New retirement benefits paid to Air America 
        employees and certain survivors
           Lump sum payments to former Air America 
        employees for retirement benefits accrued between the 
        time of assumed retirement and the commencement of a 
        new retirement annuity
          Administrative costs to process the applications for 
        new benefits of the eligible population
    Bill summary: S. 407 would establish the service of certain 
former employees of Air America as creditable toward a federal 
civil service retirement annuity under the Civil Service 
Retirement System (CSRS). The bill also would allow surviving 
spouses or children of those employees to apply for survivor 
benefits.
    Estimated federal cost: The estimated budgetary effect of 
S. 407 is shown in Table 1. The costs of the legislation fall 
within budget function 600 (income security).

                                                     TABLE 1.--ESTIMATED BUDGETARY EFFECTS OF S. 407
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                         By fiscal year, millions of dollars--
                                                             -------------------------------------------------------------------------------------------
                                                               2022   2023   2024   2025   2026   2027   2028   2029   2030   2031  2022-2026  2022-2031
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                      Increases or Decreases (-) in Direct Spending
 
Estimated
Budget Authority............................................      0      7      3      1      1      1      1      1      1      1         11         15
Estimated Outlays...........................................      0      7      3      1      1      1      1      1      1      1         11         15
 
                                             Increases or Decreases (-) in Spending Subject to Appropriation
 
[Estimated] Authorization...................................      0      *      *      *      *   n.e.   n.e.   n.e.   n.e.   n.e.          *        n.e
Estimated Outlays...........................................      0      *      *      *      *   n.e.   n.e.   n.e.   n.e.    n.e          *        n.e
--------------------------------------------------------------------------------------------------------------------------------------------------------
Components may not sum to totals because of rounding; n.e.= not estimated; * = between zero and $500,000.

    Basis of estimate: For this estimate, CBO assumes the bill 
will be enacted by the beginning of fiscal year 2023.
    Direct spending: S. 407 would establish the service of 
certain former employees of Air America (or specified 
affiliated companies) between January 1, 1950, and December 31, 
1976, as creditable toward a federal civil service retirement 
annuity under the Civil Service Retirement System (CSRS). CBO 
estimates that the additional retirement annuity and survivor 
benefit payments authorized by the bill would increase direct 
spending by $15 million over the 2022-2031 period.
    Annuity Payments: CBO's estimate is based on data collected 
in 2014 by the Air America Association (the most recent data 
available) and was adjusted for expected mortality. That data 
contains service record summaries for just over 400 former Air 
America employees. CBO estimates that about 80 members of that 
group are still living who would be eligible under S. 407 to 
begin receiving a federal retirement benefit based on their Air 
America (or related) service, provided that the period of 
service meets the eligibility requirements for a CSRS benefit. 
(There are several tiers of eligibility based on age and years 
of service that can confer eligibility for a CSRS annuity; five 
years of service is the minimum requirement.)
    Using that data, CBO expects that the average person 
eligible to apply for a new CSRS benefit under S. 407 is now 
about 87 years of age and performed about nine years of Air 
America service at a salary of just under $30,000. CBO 
estimates that the average CSRS benefit would have been about 
$3,800 per year at the time of first retirement eligibility--
about 25 years ago, on average. However, a new CSRS annuity 
that would begin under S. 407 would incorporate the annual cost 
of living increases (which have averaged about 2 percent per 
year) that would have applied in the years since first 
eligibility. Including those annual adjustments, CBO estimates 
that the average new CSRS annuity under S. 407 would be about 
$7,000. The total annual benefits paid to this group of people 
would decline over time because the number of eligible people 
cannot increase, they would have a limited time to apply for 
the new benefit (two years after enactment), and they are 
generally of advanced age. CBO estimates that new retirement 
benefits for former Air America employees would increase direct 
spending by about $2 million over the 2022-2031 period, 
primarily in the first few years.
    Lump-sum payments: In addition to a new monthly CSRS 
retirement benefit, the former Air America employees also would 
receive a retroactive lump-sum payment of the total benefits 
that have accrued since their first eligibility for retirement. 
CBO estimates that the average lump-sum payment would be about 
$136,000 per person. Over the 2022-2031 period, CBO estimates 
that the lump-sum payments would increase direct spending by $7 
million (primarily in 2023).
    Survivor benefits: In addition to retirement annuities for 
former Air America employees, S. 407 also would allow survivors 
(spouses or children) of former Air America employees who died 
before enactment of the bill to apply for a survivor benefit, 
at 55 percent of the former employee's full annuity amount. 
Using the information about the number of former Air America 
employees, CBO estimates that about 175 people would apply for 
a survivor benefit under the bill, and their average annuity 
would be about $4,700 per year. CBO projects that, over the 
2022-2031 period, annuity payments to survivors under this 
provision would increase direct spending by $6 million.
    Spending subject to appropriation: The Air America 
Association has collected identities and work history data for 
many former Air America employees; as a result of their 
outreach, CBO expects a moderately high participation rate if 
the bill is enacted. However, the administrative cost of 
successfully processing a benefit application for this group is 
likely to be significantly higher than for current federal 
employees. For Air America applicants, additional effort and 
time will be required for the Office of Personnel Management 
(OPM) to develop internal guidance and verification procedures 
based on information provided by individuals rather than 
employment records provided by an agency.
    CBO estimates that the additional administrative costs 
associated with processing Air America applications, for former 
employees and survivors, under S. 407 would cost less than 
$500,000 over the 2022-2026 period. That estimate is based on 
data from OPM. In 2021 (the most recent data available), OPM 
announced that the average unit cost of processing one type of 
civil service retirement (those occurring under Voluntary Early 
Retirement Authority or with Voluntary Separation Incentive 
Payments) is $676.70 per application. Given the additional 
administrative work involved, OPM expects the processing cost 
for Air America applications to be higher than that average but 
does not have an estimate of how much higher.
    Pay-as-you-go considerations: The Statutory Pay-As-You-Go 
Act of 2010 establishes budget-reporting and enforcement 
procedures for legislation affecting direct spending or 
revenues. The net changes in outlays that are subject to those 
pay-as-you-go procedures are shown in Table 1.
    Increase in long-term deficits: CBO estimates that enacting 
S. 407 would not increase on-budget deficits by more than $5 
billion in any of the four consecutive 10-year periods 
beginning in 2032.
    Mandates: None.
    Previous CBO estimate: On September 24, 2021, CBO 
transmitted a cost estimate for H.R. 1297, Air America Act of 
2021, as ordered reported by the House Committee on Oversight 
and Reform on May 25, 2021. Both bills would provide eligible 
former Air America employees the opportunity to apply for and 
commence a civilian retirement benefit under CSRS, including a 
lump sum payment for retroactive benefits that would have been 
paid from time of first retirement eligibility. The Senate bill 
contains a provision that would provide benefits for eligible 
survivors of former Air America employees who have died prior 
to enactment of the bill; the House bill does not. CBO's 
estimates reflect those differences between the bills.
    Estimate prepared by: Federal costs: Amber Marcellino; 
Mandates: Andrew Laughlin.
    Estimate reviewed by: Christina Hawley Anthony, Chief, 
Projections Unit; H. Samuel Papenfuss, Deputy Director of 
Budget Analysis.

       VII. CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

    Because S. 407 would not repeal or amend any provision of 
current law, it would make no changes in existing law within 
the meaning of clauses (a) and (b) of paragraph 12 of rule XXVI 
of the Standing Rules of the Senate.

                                  [all]