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Following Matz remarks the meeting, McWatters noted that a well-known law firm has rendered an opinion to the Board stating a court "could" conclude the NCUA has the legal authority under the Chevron doctrine to establish a two-tier RBNW standard.
"Under current principles of applicable law and existing case law, a court of appropriate jurisdiction, in a litigated matter or proceeding, could conclude that NCUA's statutory authority permits the NCUA to establish the proposed two-tier RBNW requirement set forth in the Proposed Rule," the legal opinion said.
Section 216 of the Federal Credit Union Act is "at best, ambiguous with respect to the statutory authority of the NCUA to implement a two-tier RBNW [risk-based net worth] requirement for complex credit unions, as the language can be interpreted in multiple ways," the opinion said.
According to the firm's opinion, section 2016 "does not prevent NCUA from imposing higher requirements on 'well-capitalized' credit unions to provide greater protection against risks" and does not show "congressional intent to preclude the NCUA from implementing different RBNW requirements for different capital categories."
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