The opinion
SNEED, Circuit Judge
(concurring and dissenting):
I concur in Parts I and II of the majority’s opinion but respectfully dissent from Part III.
In Part III the majority implies that receipt by the Board of unsolicited but relevant and noncumulative information permits the Board to reopen the record and trigger the running of a new 91-day period without providing any explicit notice to the applicant. The majority apparently would permit the receipt of any relevant noncumulative information to trigger the beginning of a new 91-day period so long as the Board designated the material as part of the record and physically placed it in the file. I do not believe that such a practice is consistent with the congressional intent to alleviate the dilatoriness of the Board and to inject some certainty into the review process. Consistency with such intent would be better achieved by making the dispatch by the Board of notice to the applicant of its intention to trigger a new 91-day period a condition precedent to the commencement of such new period.
*1381 This case amply illustrates the uncertainty created by the Board’s policy of using various informal methods to notify an applicant that relevant noncumulative information has been received and is being included in the administrative record. For example, during the period between December 27, 1976, the date BankAmerica claims the record first became complete, and May 20, 1977, the date the Board entered its order for a formal hearing, the Board sent three different types of written communications to the applicant, BankAmerica. Several letters were sent to BankAmerica explicitly stating that the Board had received additional information which it was considering to be part of the record. The Board sent BankAmerica one letter along with a copy of a Board letter to an individual who had submitted information in which letter the Board indicated to the individual that it would make his letter a part of the record. Finally, the Board merely forwarded to BankAmerica copies of Board letters responding to persons who had submitted information, in which the Board indicated that the information was to be included in the record. At least four exchanges of these types occurred during the period between December 27,1976 and May 20,1977. Because the Board apparently made no attempt to keep track of the current status of the 91-day period, and because the Board used such varied ways of notifying the applicant that new information had been received and was being included in the record, it is difficult for an applicant to know with certainty whether, and when, retriggering has occurred. Sound administrative practice would require that the Board dispatch explicit notice to the applicant each time the Board deems the record reopened and a new 91-day period commenced.
Because the record indicates that the Board’s May 20, 1977 order occurred after the termination of both the initial 91-day period, as well as after the end of any new period triggered by the applicant’s receipt of any explicit notice by the Board that a new period had begun, I respectfully dissent from Part III of the majority opinion.