(a) Witnesses and exhibits.

(1) Each party must file an updated version of the list of witnesses and exhibits required under 25 CFR 83.38(a)(2), §4.1021(b)(3), or §4.1030 by no later than 15 days prior to the hearing date, unless otherwise ordered by the ALJ.

(2) If a party wishes to include any new witness or exhibit on its updated list, it must provide an explanation of why it was not feasible for the party to include the witness or exhibit on its list under 25 CFR 83.38(a)(2), §4.1021(b)(3), or §4.1030.

(b) Failure to disclose.

(1) A party that fails to disclose information required under 25 CFR 83.38(a)(2), §4.1021(b)(3), §4.1030, or paragraph (a)(1) of this section will not be permitted to introduce as evidence at the hearing testimony from a witness or other information that it failed to disclose.

(2) Paragraph (b)(1) of this section does not apply if the failure to disclose was substantially justified or is harmless.

(3) Before or during the hearing, a party may object under paragraph (b)(1) of this section to the admission of evidence.

(4) The ALJ will consider the following in determining whether to exclude evidence under paragraphs (b)(1) through (3) of this section:

(i) The prejudice to the objecting party;

(ii) The ability of the objecting party to cure any prejudice;

(iii) The extent to which presentation of the evidence would disrupt the orderly and efficient hearing of the case;

(iv) The importance of the evidence; and

(v) The reason for the failure to disclose, including any bad faith or willfulness regarding the failure.