(c) Written evidence, identified as such, is admissible unless a participant objects and the presiding officer excludes it on objection of a participant or on the presiding officer's own initiative.

1. (1) The presiding officer may exclude written evidence as inadmissible only if—

   1. (i) The evidence is irrelevant, immaterial, unreliable, or repetitive;
   2. (ii) Exclusion of part or all of the written evidence of a participant is necessary to enforce the requirements of this subpart; or
   3. (iii) The evidence was not submitted as required by § 12.85.
2. (2) Items of written evidence are to be submitted as separate documents, sequentially numbered, except that a voluminous document may be submitted in the form of a cross-reference to the documents filed under § 12.85.
3. (3) Written evidence excluded by the presiding officer as inadmissible remains a part of the administrative record, as an offer of proof, for judicial review.

(d) Testimony, whether on direct or on cross-examination, is admissible as evidence unless a participant objects and the presiding officer excludes it.

1. (1) The presiding officer may exclude oral evidence as inadmissible only if—

   1. (i) The evidence is irrelevant, immaterial, unreliable, or repetitive; or
   2. (ii) Exclusion of part or all of the evidence is necessary to enforce the requirements of this part.
2. (2) If oral evidence is excluded as inadmissible, the participant may take written exception to the ruling in a brief to the Commissioner, without taking oral exception at the hearing. Upon review, the Commissioner may reopen the hearing to permit the evidence to be admitted if the Commissioner determines that its exclusion was erroneous and prejudicial.