In my line-by-line review of the current Criteria’s Background section, I noticed a small detail that seems significant as to precisely where the Criteria go off the rails. That detail is covered in the review, but I thought it worth surfacing in further depth.

First, read the following sentence as the primary premise for a series of questions about WIFIA loan eligibility for a Section 3908(b)(8) non-federal cost share:

To limit Federal credit participation in a federally involved project consistent with FCRA law and 1967 Budget Report principles, only non-Federal projects or assets are eligible for WIFIA loans and loan guarantees.

That seems OK, right? It is saying that a non-federal cost share in a federally involved project has to be an authentic non-federal asset for a WIFIA loan, which is obviously true and not just because of FCRA treatment. As for the non-federal project part, that’s true as well, but not relevant because the WIFIA loan is specifically for the cost share asset, not the overall project. With this premise, answers to any eligibility questions can focus on the non-federal cost share asset, where things should be pretty straightforward — a non-federal borrower, non-federal repayment and no funny business with the federal participant.

A Barely Noticeable Deletion

Now read this one:

To limit Federal credit participation in a federally involved project consistent with FCRA law and 1967 Budget Report principles, only non-Federal projects are eligible for WIFIA loans and loan guarantees.

Almost the same words — except the ‘or assets‘ part is missing. That barely noticeable deletion entirely changes the premise. Now the focus is solely on (and implicitly limited to) the overall project — is it federal or not? Yes or no? And if the federally involved project is found to be a ‘federal project’ (it will), then ineligibility is established right there — and the facts about the non-federal cost share don’t matter.

Of course, the Criteria essentially use the latter language as the conclusion of the Background section and the premise of the questions. Of course, because it leads directly to the rabbit hole of vague consolidation concepts that can turn any federally involved project into a ‘federal project’. We knew that, but the story is in fact worse.

Everywhere in the Background section, the phrase ‘projects or assets‘ is used, as in the first example sentence above. This persuades the reader to think that when the various aspects of the FCRA problem are considered with respect to a specific non-federal cost share, eligibility as a non-federal asset won’t be difficult to establish. Then, on the very last line, the rules of the game are subtly changed to make that effectively impossible, as only non-federal projects can be eligible. On its jargon-filled surface, the Background section might look like an honest analysis, judiciously seeking the correct application of FCRA principles to specific loans for specific assets. But in the conclusive step, its authors essentially pull a classic three-card monte move, apparently in the expectation that the mark — uh, applicant — will be too confused and intimidated to question the con.

J’accuse…

Was this intentional? As a well-thought-out strategic plan, probably not. But on another level, it’s easy to imagine that there was a near-final draft of the Background section that had ‘projects or assets‘ throughout. Someone then suddenly realized that the ‘or assets‘ words in the final line would not necessarily lead to the desired outcome, so the words were simply deleted, regardless of the rest of the text.

Perhaps that’s not deception per se. But it seems to me that the deletion is specific evidence that the Criteria are and always were intended to reach a certain conclusion about eligibility. With that objective, FCRA law and the principles in the 1967 Report don’t need to be really understood or even read, and they obviously weren’t. Instead, all that arcane technical stuff is simply useful camouflage to confuse others. Just toss a jargon-filled word salad, ask a bunch of leading questions to go through the motions, and make the pre-ordained and unappealable judgement of ineligibility. Convicta et combusta.

J’accuse…the current Criteria aren’t just wrong. They were developed in bad faith from the start. If not, what else could be the purpose of deleting the words ‘or assets‘ in the most consequential sentence of the Criteria? Can the authors of the Criteria explain that?

As discussed in many prior posts here, OMB’s 2020 WIFIA FCRA Criteria are seriously and fundamentally flawed. Now that the process of replacing these invalid restrictions on WIFIA and CWIFP statutory eligibility has moved to the narrative stage, the current Criteria pose a new challenge: What is their narrative? To make the case that something needs to be replaced, you start by describing that thing and only then explain what’s wrong with it. We know what the Criteria do — restrict loan eligibility — but on exactly what basis with respect to any law, principles or logic? In a long-read essay format, you can demonstrate that the Criteria are based on confusion, dishonest agendas and logic-free thinking. I think I’ve done that. But for a pro-and-contra narrative debate in an attentionally challenged forum, that approach won’t work. It’ll lead very quickly to ‘argument from authority’ territory, and the Criteria’s author is in fact the ultimate authority in this case. Case dismissed — next.

Instead, it’s not only necessary to anchor the Pro-Eligibility Narrative in FCRA law, principles and logic, but to describe the Pro-Criteria Narrative as if they were trying in good faith to do the same. Then you can show — ideally, in rapid-fire narrative style — that the Criteria simply misunderstood the relevant law and principles, and that your alternative is obviously better.

You’d think there wouldn’t be any need to go full straw man on this one. The current Criteria were established by a precise Congressional Directive that directs OMB and WIFIA to use FCRA law and the budget principles of the 1967 Report, and to publish the outcome in the Federal Register. We’re not exactly working with a WaPo op/ed here. A simple summary of the current Criteria as published ought automatically to be the Pro-Criteria Narrative case in the context of the law and principles we want to talk about, right?

Not quite. The Federal Register publication refers to FCRA law and budget principles often enough, and the text has that measured tone of Serious Bureaucratic Expostulation. But after nearly a year of looking at the Criteria and everything about the issue I can find, I still have no idea what exactly they’re saying. I know their conclusions (effective ineligibility for a wide swath of otherwise eligible loans, especially at CWIFP), the fact that those conclusions are being used at face value (e.g., CBO scoring), and that the whole mess is hopelessly wrong. Drafting a Pro-Criteria narrative that sounds at least a little bit coherent is necessary to avoid immediate ‘dismissal by authority’ before the debate even gets started, as noted above. But I’m finding the task very challenging.

I tried one approach in the super-short narrative draft a few days ago, but the ‘therefore must’ phrase connecting budgeting for the cost share asset with that of the loan now seems so glaringly unsupported and logic-free as to suggest the working of some type of transcendent budget wisdom that is beyond explanation to mere mortals. Don’t want to go there. A mention of a connection that the Criteria do in fact rely on is needed for a Pro-Criteria narrative. But the publication never explicitly says anything about it and assigning specific words to convey the idea as if it were credible is fraught with risk. So far, the right words fail me.

So, I’ve tried another approach — just let the Criteria speak for themselves. In this approach, the Background section of the publication is the Pro-Criteria Narrative, in the authority’s very own words, no more nor less. It’s not a snappy summary, but fortunately the Background section is only about 8 lines long, so possibly amenable to narrative treatment for the slightly more attentionally abled, which is where one hopes technical this issue will be considered anyway. The approach goes through the section line-by-line and presents the Pro-Eligibility Narrative in the form of individual line responses with a short summary conclusion. Here’s the first attempt [updated 10052023]:

WIFIA-FCRA-Criteria-Background-Section-Line-by-Line-Review-Version-1.1-10052023-InRecap

^{PDF of the document}

A summary of the Pro-Criteria Narrative, the Pro-Eligibility Counter-Narrative and the New Criteria, updated.

Non-Federal-FCRA-Narrative-and-Counter-Draft-091123-InRecap-

^{PDF of the document}

Background here: FCRA Non-Federal: Truth, Narratives, and the New Criteria

This post sketches out four sets of bullet points that summarize different aspects of the FCRA Non-Federal analysis to date.

The Simple and Elegant Truth

At this point, the true picture of how FCRA is meant to apply to federal loans that finance non-federal interests in federally involved projects has become very clear:

• The federal budget is meant to include resource allocation decisions that are under the control of the federal government. Resource allocation that is ‘subject to the discipline’ of non-federal entities should not be included (Chapter 3 of the 1967 Budget Report).

• Federal program loans are problematic in a cash budget because their repayment cash flows will be recorded as revenue, which is highly distortionary. Federal loans must therefore be treated separately in an accrual-based framework. That separation is the sole purpose of FCRA (Chapter 5 of the 1967 Budget Report and 1990 FCRA law).

• Use of loan proceeds is irrelevant to the purpose and operation of FCRA — the loan’s repayment characteristics are the sole basis for FCRA qualification. Loan proceeds will be governed by the statutory eligibility and use requirements of the loan program.

• However, if loan proceeds that finance a cost share in a federally involved project are used in a way that is inconsistent with the non-federal borrower’s self-interest and independent decision making, that might indicate the unauthorized use of federal sovereign power in the project. This would taint the loan’s repayment characteristics with respect to FCRA classification.

• Therefore, in addition to basic criteria that a WIFIA borrower is a non-federal entity allocating non-federal resources for repayment, non-federal cost shares in a federally involved projects should be subject to two additional FCRA criteria. First, that the value of the cost share to the non-federal borrower is commensurate with its cost of repaying the loan. Second, that the borrower made its allocation decisions freely, according to its standard procedures for financing large capital expenditures, and independently of the federal participant.

• These additional criteria can be statutorily enacted and replace (or serve as the basis of significant modification of) WIFIA’s seriously and fundamentally flawed current FCRA Criteria. This is the New Approach.

I think that’s the whole story — simple and elegant in some ways, like most truthful things.

The Pro-Criteria Narrative

Unfortunately, the task at hand is no longer about truth, however simple and elegant.

I’ve come to the conclusion that the current Criteria aren’t based on a sincere or well-informed analysis of FCRA law and principles, and unrelated to the truth of the issue except where they butcher it. But that conclusion is largely irrelevant to any practical solution which must be developed in a political context. What matters in that context is the narrative created by the Pro-Criteria side of the issue, either directly by the authors or indirectly by the various entities interpreting the Criteria for application or possible modification. The Pro-Criteria Narrative is not yet explicitly stated anywhere as far as I know, but based on some evidence (e.g., CBO scoring) and the reasoning (such as it is) given in the Criteria publication itself, my best guess is that it goes as follows:

• A project or an asset with some federal involvement might be considered a wholly ‘federal project’ or ‘federal asset’ for federal budget purposes. Per the 1967 Budget Report, if there’s any ambiguity in the determination, the project or asset should be considered federal.

• Notwithstanding WIFIA eligibility, a Section 3908 (b)(8) non-federal cost share in a federally involved project may be a ‘federal asset’ for federal budget purposes. This is assumed to be the case for all projects involving two specific federal agencies, USACE and Bureau of Reclamation.

• A federal asset must be recorded in the federal budget on a cash basis. Regardless of the identity of the borrower, a WIFIA loan to finance a cost share determined by the Criteria to be a ‘federal asset’ therefore must also be recorded on a cash basis, and not on a FCRA accrual basis.

I’ve tried to make this sound as plausible as possible. It wasn’t easy. The goal was for someone reading these bullets quickly to get the impression that the current Criteria’s questions are based on logical and prudential principles. Something like:

We don’t want any games from cost shares in federally involved projects sneakily hiding something from the budget, right? So, if there’s any doubt, include it. And if the cost share ‘federal asset’ is included in the cash budget, the WIFIA loan paying for it ought to be as well. I mean, it’s the same federal asset, or sort of the same, or something. Anyway, just commonsense. Put the WIFIA loan in the nice and safe-sounding cash budget like all the other federal assets. No tricky accrual FCRA privileges for you, mister non-federal cost-share! Oh, that means the loan is effectively ineligible? Well, too bad — we must maintain the sacred integrity of the federal budget!

Am I exaggerating that this misshapen story will be the takeaway in most cases? Probably not.

The Pro-Eligibility Counter-Narrative

As is the way of all narratives in a political context, a counter to the Pro-Criteria Narrative can’t get into strict truth and logic, though ideally any result should end up being consistent with that standard. What parts of the Elegant Truth can be told as a story? Start with the name — not the anti-Criteria, but the Pro-Eligibility Counter-Narrative story. Always say ‘current Criteria’ to imply that an update is naturally imminent. I’ll try more:

• The current Criteria ignore the most relevant and fundamental principles in the 1967 Budget Report. The main principle in ‘Coverage of the Budget’ (Chapter 3) is that when a non-federal entity is obviously making the decision about its own resource allocation, that activity should not be included in the federal budget. Why is this not obvious for non-federal cost share borrowers that agree to repay millions of dollars from their own non-federal resources?

• A non-federal cost share in a project will establish a legally valid and substantial non-federal interest in that project. How the non-federal cost share participant pays for its non-federal interest — upfront cash, bank project financing, tax-exempt bonds or a WIFIA loan — is not relevant. On what basis can the current Criteria consider a valid non-federal interest to be a ‘federal asset’? Why does that characterization apply only when WIFIA financing is involved?

• A WIFIA loan is a federal financial asset that must be recorded on an accrual basis in the federal budget to avoid the distorting effect of non-federal repayment. That is why FCRA was enacted. On what grounds in FCRA law and principles can the current Criteria require that a federal financial asset be recorded on a cash basis?

This wasn’t easy either. So much has to be left out to keep the counter-narrative at the dismal level of the Pro-Criteria Narrative. Hence the frequency of questions — get the Pro-Criteria side to expand their narrative so its full incoherence becomes more obvious.

The Pro-Eligibility New Criteria

The Pro-Eligibility Counter-Narrative should always be followed with an alternative to the current Criteria. Regardless of its merits in the context of the Elegant Truth, such a Pro-Eligibility counteroffer is obviously the essential element of a political solution. In effect, the goal of the Counter-Narrative is to direct focus on the counteroffer, which I think should be based on the New Approach. Originally, I thought simply calling this the ‘Counteroffer’ would be right, but now I’m thinking ‘New Criteria’ might be better packaging. I’ll try it that way for now.

The New Criteria can and should be summarized as succinctly as possible:

• The current Criteria aren’t based on FCRA law or principles, arbitrarily restrict statutory eligibility and have failed to comply with the 20202 Congressional Directive. They must be replaced.

• The New Criteria are solidly based on FCRA law and the principles in the 1967 Budget Report. As such, they can be stated as clear and explicit statutory criteria, not opaque bureaucratic questions.

• The New Criteria include the basic requirement that the borrower is a non-federal entity with a non-federal source of repayment. Two additional criteria establish that the WIFIA loan is financing a valid non-federal interest in a project.

• The two additional criteria are that the non-federal borrower (1) receives value from its non-federal interest commensurate with its cost of the WIFIA loan, and (2) has undertaken the WIFIA loan repayment obligation independently of any federal participant in the project. Compliance will explicitly confirm FCRA accrual treatment for the WIFIA loan and should be straightforward for eligible loan applicants.

The next step is to start to package the narratives and the New Criteria for a political context. Does that sound fun? No — it will probably be the hardest part of this whole exercise.

The FCRA Non-Federal truth is not packaged, of course, because it’s not directly relevant to that context, but I hope it will remain the foundation of any resolution of the issue. Or at least some type of a consolation.

As a follow-on to the prior post about CBO’s scoring for S.3591, this one looks at another CBO FCRA cost estimate, for S.914 in 2021.

CBO’s 2021 FCRA rationale is, as you’d expect, basically the same as discussed in the prior post. But I’d like to highlight one sentence that in many ways summarizes the FCRA issue at the center of both cost estimates:

Under the proposed direction, [WIFIA] and [CWIFP] could make loans and loan guarantees for federal projects or assets and record the costs on an accrual basis rather than on a cash basis.

This is simply not true, as discussed at length many times elsewhere on this site. The loan is to finance the non-federal borrower’s non-federal interest in the project. Unless the non-federal borrower is a crook or an imbecile, why the hell else are non-federal sources agreeing to repay the loan? Once that’s made clear, FCRA law & principles are very straightforward.

As with the 2020 cost estimate, I can’t help but see an echo of the current Criteria’s rabbit hole of FCRA misunderstanding and confusion in this one. There’s something else wrong with CBO’s statement, but it’s a bit difficult to identify precisely. Whose ‘costs’ are being recorded? The WIFIA loan? The cost share? The whole project? What exactly does the statement mean?

Into the Rabbit Hole

It’s worth going into the rabbit hole for a moment to try to see where the echoes are coming from. We’ll start by illustrating the implications of accepting the current Criteria as a guide for FCRA classification and work back from there.

Let’s say that CWIFP makes a $100 million loan to an honest and intelligent non-federal borrower with a non-federal source of repayment to finance a cost share in a federally involved project. The borrower’s community will really benefit from the cost share — they voted overwhelmingly for extra local taxes and everything. But the project falls afoul of the Criteria’s dread footnote 4 and the cost share is therefore a ‘federal asset’ — kind of like an expropriation, no?

Nevertheless, CWIFP persists. Cash accounting now applies, so the loan incurs an expenditure of the full $100 million. Ah, that’s bad, bad, bad. The program has to go to Congress for a lot of extra credit subsidy. That won’t be pretty.

But the CWIFP loan proponents point out that there’s more to the story, even apart from the obvious merits of the project. After the painful upfront expenditure, all the cash flow inflows from the loan’s repayment are revenues — yes, just like more taxes incoming. Investment-grade, secured, contractually enforceable and precisely scheduled federal taxes that the community is willing to pay! And they offered it! They even raised their own local taxes to pay for additional federal revenues to finance a new federal asset!

But wait — there’s more! The total undiscounted debt service of the loan is over $250 million, which means that the net revenue gain to the federal government is over $150 million!

Okay, on a discounted basis, using a UST rate, the revenues happen to equal about $100 million, so the gain is really just covering the deficit UST financing required for the upfront expenditure. And worse, they come in over 40 years, far beyond any imaginable electoral reality. The expenditure, however, is today’s problem.

But you know, problems are relative. If the year is a fiscal trainwreck anyway (e.g., Covid times), maybe an extra $100 million of credit subsidy will matter even less than it usually does — barely noticeable. Future years are perhaps expected be far leaner and budgeting ferociously stringent (e.g., now). Wouldn’t it be nice to have a little incoming revenue that can be used for new spending? Also, CBO’s projection timeframe for cost estimates is ten years, so after the initial expenditure there’s a fair chunk of undiscounted cash incoming to achieve revenue-neutrality for new initiatives that have multi-year costs. And the community paying the extra revenues is actually happy — grateful even! — that their CWIFP loan got done to finance a federal asset. For everyone else, the $150 million cash ‘gain’ to the federal government can of course take central place in the usual soundbite narrative.

Maybe the story is not so bad, after all? Mmmm…if some is good, more might be better. Maybe think about making more federal loans to federally involved projects that specifically fall under the Criteria’s footnote 4? Maybe the Criteria could be applied elsewhere? Just saying.

Exactly What FCRA was Intended to Stop

I didn’t have to make this story up. The basic scenario is exactly what the 1990 FCRA law was enacted to prevent. If you classify a non-federal loan’s reversing cash flows as expenditures and revenues, you’ll get no end of budgeting games mischaracterizing gain and shifting timing. Accrual accounting for federal loans is not some sort of privilege or special gift — pre-1990 federal loan programs used (and abused) cash accounting and were apparently fine with it. Rather, accrual accounting is a long-established mechanism to enforce a more accurate reflection of true gain and cost of finance and leave less room for funny business.

Enforcement is automatic when the accounting framework is uniformly accrual-based, like FASB’s GAAP for private-sector reporting entities. But when the overall framework is primarily cash-based, another step is required to separate activities where accrual enforcement is critical (making loans with reversing cash flows) from those where it’s less important because the scope for distortion is much smaller (almost all the rest of federal budgeting for one-way outflows). The 1967 Report (Chapter 5, Federal Credit) spends a lot of time on describing the importance of this separation (and hence, the rationale for FCRA) and the key distinction between loans and everything else. That distinction is the non-federal borrower’s substantive “…obligation for repayment, plus interest…”, that is, the inflow part of the reversal. It is clear in the context of the Report that this repayment must not be under federal control but an allocation of resources ‘subject to the discipline of the marketplace’ (Chapter 3, Coverage of the Budget). That’s essentially captured by the concept FCRA loans requiring exclusively non-federal repayment sources — those sources make the allocation decision subject to their own, non-federal discipline (e.g., sharp-eyed P3 investors or skeptical local taxpayers).

Use of Proceeds Don’t Matter to FCRA

What isn’t mentioned is the loan’s use of proceeds. I am certain this was because it wasn’t considered necessary. Theoretically, where the loan proceeds are spent don’t affect the loan’s reversing cash pattern, which is the sole factor separate FCRA treatment was meant to address. Absent any policy-determined limitations from the lending program (which of course there always are), the non-federal borrower could just give the money away as far as FCRA is concerned. Even gift it to a worthy federal agency, who presumably will dutifully record the windfall in its cash budget.

Practically, I’m sure the 1967 Report’s authors and FCRA law’s drafters just couldn’t imagine that in the real world, loan proceeds would be used for anything other than to further the non-federal borrower’s own rational and sophisticated self-interest, within the strict limits imposed by lending program rules. Unless there’s crookedness or imbecility involved, I can’t either. The proceeds will inexorably be spent on a programmatically eligible non-federal interest. If policymakers or oversight agencies don’t like a particular use of loan proceeds, they should go ahead and amend the program’s statutory eligibility. FCRA is not remotely the right place to do that.

Use of Proceeds is the Core of the Issue

Yet the current Criteria’s confused focus on the WIFIA loan’s use of proceeds is precisely at the core of the issue. The preliminary reasoning, such as it is, can be summarized as follows:

• A federally involved project can be classified as a single ‘federal project’. There’s nothing about this in FCRA law, but the Criteria refer to a ‘when in doubt, include it’ principle from Chapter 3 of the 1967 Report as the basis for such a novel consolidation. Nothing else in the 1967 Report is mentioned or apparently was considered. Or even read.

• All the assets in a ‘federal project’ are ‘federal assets’. Another completely novel concept.

• A statutorily eligible WIFIA loan with a non-federal borrower and a non-federal repayment source that finances a cost share asset in a ‘federal project’ is therefore financing a ‘federal asset’. Note the cost share becomes a ‘federal asset’ only if a WIFIA loan is used. Cash payment or tax-exempt bond financing apparently doesn’t have this effect.

• Budgeting for non-financial federal assets must be on a cash basis, not accrual. A cost share that is financed with a WIFIA loan is a non-financial ‘federal asset’ and as such must be included in the cash budget.

All bad enough so far, but there’s still no link to FCRA law or principles. As discussed above, in theory if WIFIA eligibility allowed loans for patriotic donations and that’s what the non-federal borrower wanted to do, a WIFIA loan to finance the gifted ‘federal asset’ would still be forced to use FCRA accrual because the game-prone reversing cash flows are still there. An additional, especially egregious and illogical, step is required to comply with the specific language in the Congressional directive and also perhaps to reach a desired, agenda-driven conclusion:

• Because the ‘federal asset’ financed by the WIFIA loan must be included in the cash budget, the WIFIA loan must also be included in the cash budget. Therefore, FCRA classification is not available.

Here we are. This is the core of WIFIA’s current FCRA issue. The amount of confusion and illogicality is breathtaking. For one, a WIFIA loan is a federal financial asset for which FCRA accrual treatment is mandatory, not a special privilege. The use of the loan’s proceeds is entirely separate and completely irrelevant to the WIFIA loan’s important FCRA characteristic, its reversing cash flows. It is the WIFIA loan’s own characteristics as a federal financial asset that determine its correct budgeting, not the separate asset (federal or non-federal, whatever) created by the loan’s proceeds. Not only are the ‘federal asset’ and the WIFIA loan asset two different federal assets, but it was recognized by the 1967 Report that they are also so fundamentally unlike as to require different treatment in the federal budget.

It gets worse. Not only do the Criteria ignore everything in the 1967 Report except for one largely irrelevant statement taken out of context, but they invent new budgeting concepts that go directly against what the Report does say that’s relevant to this budgeting issue. Is the WIFIA loan’s repayment source under federal control? Well, no. Is the repayment demonstrably subject to non-federal discipline? Well, yes. Does the WIFIA loan create a substantive and predictable reversing cash flow pattern? Yes, that’s true, too. Then how can the WIFIA loan be included in the cash budget? Because the loan proceeds paid for something we call a ‘federal asset’ in a ‘federal project’ and federal assets go into the cash budget. Right or wrong, why is that classification relevant to budgeting for a separate federal financial asset like the WIFIA loan? Because… I’m honestly not sure how the last question could be answered with any kind of logic or reference to FCRA principles.

But the question has never been asked. The Criteria don’t explain anything about their reasoning and conclusion, instead relying on a series of assertions (including in its purest form in footnote 4) with the sole exception of the irrelevant quote noted above. The resultant picture is confusing, and though the Criteria are clearly flawed in many ways, it takes some effort to backfill the missing pieces and pin down exactly why, as the inordinate extent of FCRA Non-Federal posts on this topic on this site shows.

I think I’ve got it right now: The single most precise and fundamental problem with the Criteria is that budgeting for a ‘federal asset’ (real or imagined) does not override FCRA budgeting for an eligible WIFIA loan because the loan’s proceeds were spent on that asset. There is no logical or principle-based connection between the two. There are plenty of other errors and oddities in the Criteria, but once the core of its erroneous reasoning is surfaced and invalidated, the Criteria’s unfounded connection to FCRA is lost and the rest of its obstructive mess can be forgotten.