author: TARANTO, Circuit Judge.

text:
    PAPIERFABRIK AUGUST KOEHLER SE, Plaintiff-Appellant v. UNITED STATES, Appvion, Inc., Defendants-Appellees
    2015-1489
    United States Court of Appeals, Federal Circuit.
    Decided: December 16, 2016

      John F. Wood, Hughes Hubbard & Reed LLP, Washington, DC, argued for plaintiff-appellant. Also represented by FloRA Amanda DeBusx, Lynn Kamarck, Matthew R. Nicely, Eric S. Parnes, Daniel Martin Witkowski.
    Joshua E. Kurland, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for defendant-appellee United States. Also represented by Benjamin C. Mizer, Jeanne E. Davidson, Reginald T. Blades, Jr.; Jessioa M. Link, Office of the Chief Counsel for Trade Enforcement & Compliance, United States Department of Commerce, Washington, DC.
    Daniel Schneiderman, King & Spalding LLP, Washington, DC, argued for defendant-appellee Appvion, Inc. Also represented by Gilbert B. Kaplan, Stephen A. Jones.
    Before TARANTO, CHEN, and STOLL, Circuit Judges.
   TARANTO, Circuit Judge.

This case involves the U.S. Department of Commerce’s review of imports of lightweight thermal paper from Germany between November 1, 2010, and October 31, 2011, the third year covered by an applicable antidumping duty order. In the review, the German firm Papierfabrik August Koehler SE (Koehler) was the only respondent. Commerce discovered midway through the review that Koehler had engaged in a scheme resulting in the omission of some German-market sales from the information Koehler had supplied to Commerce, thereby altering the home-market prices that are compared to U.S. prices to measure the dumping margin. Because of that misconduct, Commerce deemed Koehler’s data unreliable and made adverse inferences against Koehler. Commerce adopted the highest dumping margin cited in the petition that launched the original investigation, relying for corroboration on sales data Koehler had submitted in the second-year review. See Lightweight Thermal Paper from Germany: Final Results of Antidumping Duty Administrative Review; 2010-2011, 78 Fed. Reg. 23,220 (Dep’t of Commerce Apr. 18, 2013). The Court of International Trade approved Commerce’s determination. Papierfabrik August Koehler S.E. v. United States, 7 F.Supp,3d 1304 (Ct. Int’l Trade 2014), motion to amend the judgment denied, 44 F.Supp.3d 1356 (Ct. Int’l Trade 2015), Concluding that Commerce permissibly exercised its considerable discretion, we affirm.

I

Acting under 19 U.S.C. § 1675, in response to the request of Appvion, Inc. (formerly known as Appleton Papers, Inc.), Commerce initiated this third administrative review of its antidumping duty order covering lightweight thermal paper from Germany on December 30, 2011. Initiation of Antidumping and Countervailing Duty Administrative Reviews and Request for Revocation in Part, 76 Fed. Reg.,82,268 (Dep’t of Commerce Dec. 30, 2011). Koeh-ler responded to Section A of Commerce’s antidumping questionnaire on February 21, 2012, and Sections B and C on their due date, February 27, 2012. Koehler’s responses included aggregate information about the quantity and value of Koehler’s home-market sales, as well as a database of information about individual home-market sales transactions. Due to “questions which ha[d] not been answered adequately, and areas where clarification of the submitted information [was] required,” Commerce issued a supplemental questionnaire on May 16, 2012. J.A. 489-94. On May 18, 2012, Appvion filed an affidavit from a confidential source asserting that Koehler was engaged in a transshipment scheme, whereby it was shipping goods destined for its home^ market through other markets so that those sales would not be reported as home-market sales to Commerce. Appvion also placed on the record certain sales data submitted by Koehler in the second administrative review (covering November 1, 2009, to October 31, 2010).

Koehler requested two extensions of time to respond to the May 16 supplemental questionnaire. On May 24, 2012, Koeh-ler sought a two-week extension due to the temporary absence of key personnel, the time required to translate documents, and the difficulty of reviewing the many documents involved. Commerce granted that extension due to the “unique circumstances.” On June 4, 2012, Koehler sought a further three-week extension to respond to the supplemental questionnaire and to allow outside counsel to investigate the transshipment allegations. Commerce agreed in part, again citing “unique circumstances.”

Koehler finally responded to the supplemental questionnaire on June 27, 2012, the new deadline. Along with its response, Koehler admitted that its employees had knowingly transshipped certain orders that should have been reported as home-market sales, and it proffered an updated home-market sales database that it alleged included those sales. Although Commerce accepted the supplemental questionnaire responses and allowed Koehler to correct some inadvertent errors in the originally submitted home-market data, it refused to accept the updated home-market sales data that included the omitted, transshipped sales. Commerce explained that the supplemental questionnaire had requested only clarification, not new data; that Koehler’s new data was untimely; and that Koehler had not shown good cause for extending the deadline for data submission.

Commerce- published its preliminary results on December 11, 2012, Lightweight Thermal Paper From Germany; Preliminary Results of Antidumping Duty Administrative Review; 2010-2011, 77 Fed. Reg. 73,615 (Dep’t of Commerce Dec. 11, 2012), and its final results on April 18, 2013, Lightweight Thermal Paper from Germany: Final Results of Antidumping Duty Administrative Review; 2010-2011, 78 Fed. Reg. 23,220 (Dep’t of Commerce Apr. 18, 2013). In its April 10 Issues and Decision Memorandum accompanying the final results, Commerce found that Koehler had withheld information, failed to provide information in a timely manner, significantly impeded the proceeding, and provided information that could not be verified, and that Koehler also had failed to cooperate to the best of its ability. J.A. 1935-36. On those bases, Commerce invoked its authority under 19 U.S.C. § 1677e(a) and (b), see Statement of Administrative Action, H.R. Rep. No. 103-316, vol. 1, at-868-70 (1994), as reprinted in 1994 U.S.C.C.A.N. 4040, 4198-99 (deemed “authoritative” by 19 U.S.C. § 3512(d)), and concluded that it would draw inferences adverse to Koehler. J.A. 1935-36.

With respect to the data that Koehler timely submitted, Commerce found that “[t]he extent of Koehler’s material misrepresentation in this case rendered Koehler’s questionnaire responses wholly unreliable and unusable.” J.A. 1937. While Commerce acknowledged. that “Koehler took certain measures after the allegation was made by Petitioner and acknowledged by Koehler,” it “d[id] not find that.such actions taken by Koehler restore[d] [its] confidence in .the reliability of [Koehler’s] home market sales data submitted for this review* especially given the extent of the fraudulent activity involved in this transshipment scheme.” J.A. 1942. Commerce also noted that “Koehler did not reveal its transshipment scheme voluntarily; it did so only after [Appvion’s] May 18, 2012, allegation” and that it “believe[d] it unlikely that Koehler would have provided information about the transshipment scheme and the omitted sales were it not for [Appvion’s] allegation.” J.A. 1941.

Having rejected Koehler’s timely-submitted data, Commerce chose to adopt, as the dumping margin it would apply to Koehler, the highest margin -rate alleged in Appvion’s petition, 75.36%. See 19 U.S.C. § 1677e(b)(1) (2012) (“an adverse inference may include reliance on information -derived from ... the petition”). Commerce then found corroboration for that figure in the fact that it fell within the range of transaction-specific margins calculated from data Koehler had submitted in the second administrative review, where the margins ranged from less than zero to 144.63%. See id; § 1677e(c) (providing that for “secondary information” like Appvion’s petition, Commerce “shall, to the extent practicable, corroborate that information from independent sources that are reasonably at [its] disposal”).

Commerce explained that 19 U.S.C. § 1677m(e) did not require Commerce to consider the updated information that Koehler tried to submit. It found multiple reasons for that provision’s inapplicability: first, Koehler had not “submitted [that data] by the deadline”; second, the data could not be “verified”; and third, Koehler had not “demonstrated that it acted to the best of its ability in providing the information and meeting the requirements established by” Commerce. Id. § 1677m(e)(l), (2), (4). Commerce also explained that it was not obligated to accept Koehler’s late-filed updated data under § 1677m(d), which provides that Commerce in certain circumstances shall permit a person “to remedy or explain” a “deficiency.” Commerce noted that Koehler’s “deficiency” was not due to an error or misunderstanding, but to intentional misconduct, which •Commerce gave Koehler an opportunity to explain.

On April 24, 2013, Koehler filed a complaint with the Court of International Trade to challenge Commerce’s final results. On December 6, 2013, Koehler moved for judgment on the agency record pursuant to Court of International Trade Rule 56.2, which permits the court to enter a final judgment for either party without a trial. Ct. of Int’l Trade R. 56.2(b) (“If the court determines that judgment should be entered in an opposing party’s favor, it may enter judgment in that party’s favor, notwithstanding the absence of a cross-motion.”). The court sustained Commerce’s determination and entered judgment for Commerce on September 3, 2014. Papierfabrik August Koehler, 7 F.Supp.3d at 1318. Koehler moved to amend the judgment on October 3, 2014. The court denied the motion on January 20, 2015. Papierfabrik August Koehler, 44 F.Supp.3d at 1359.

Koehler appeals. It challenges (1) Commerce’s decision to disregard its original home-market data; (2) Commerce’s corroboration of the 75.36% figure; and (3) Commerce’s refusal to allow Koehler to submit updated data after the fact-submission deadline, which was the date on which Appvion notified Commerce of Koehler’s transshipment scheme. We have jurisdiction under 28 U.S.C. § 1295(a)(5).

II

We review Commerce’s determinations applying the same standard to Commerce’s actions that the Court of International Trade applies. Apex Exports v. United States, 111 F.3d 1373, 1377 (Fed. Cir. 2015). Commerce’s decision is reviewed here to determine if it is “unsupported by substantial evidence on the record, or otherwise not in accordance with law.” 19 U.S.C. § 1516a(b)(1)(B)(i).

A

We see no reversible error in Commerce’s determination to draw adverse inferences as to Koehler without relying on Koehler’s original, incorrect home-sales data.

Where “an interested party ... withholds information that has been requested,” “fails to provide such information by the deadlines for submission of the information,” “significantly impedes a proceeding,” or “provides such information but the information cannot be verified,” Commerce may use the facts that are “otherwise available” to it to calculate an anti-dumping margin. 19 U.S.C. § 1677e(a). If, in addition, Commerce finds that “an interested party has failed to cooperate by not acting to the best of its ability to comply with a request for information,” then Commerce “may use an'inference that is adverse to the interests of that party in selecting from among the facts otherwise available.” 19 U.S.C. § 1677e(b). The best-of-one’s bility standard “does not require perfection and, recognizes that mistakes sometimes occur,” but “it does not condone inattentiveness, carelessness, or inadequate record keeping.” Nippon Steel Corp. v. United States, 337 F.3d 1373, 1382 (Fed. Cir. 2003). The standard expects respondents to “(a) take reasonable steps to keep and maintain full and complete records .,; (b) have familiarity with all of the records it maintains in its possession, custody, or control; and (e) conduct prompt, careful, and comprehensive investigations of all relevant records that refer or relate to the imports in question.” Id.

Here, substantial evidence supports Commerce’s decision to apply § 1677e(a). There is substantial evidence that Koehler engaged in an intentional transshipment scheme that caused it to withhold certain home-sales information from its responses to Commerce, an omission that impeded the investigation, and that it offered updated information only after the deadline for submitting data. Commerce could properly find one or more of the conditions stated in § 1677e(a) satisfied in this case.

Substantial evidence likewise supports Commerce’s decision to apply § 1677e(b). There is substantial evidence that Koehler did not cooperate to the best of its ability. The- kind of misconduct evidenced here is far from the cooperation that standard demands. See Nippon Steel, 337 F.3d at 1382. Koehler attempts to pin the misconduct on a few errant employees. But Commerce could find that Koehler is responsible for the conduct of its employees and for the responses it provided to Commerce. Indeed, Koehler and its outside counsel certified the accuracy and completeness of the original responses. Thus, Commerce was entitled to make adverse inferences;

Commerce could also determine that Koehler’s misconduct with respect to its home-market sales undermined the reliability of its original data, so that Commerce could disregard it as evidence of the lower dumping margins Koehler urged, rather than undertake new inquiries to determine how to arrive at correct data.We have held that fraudulent responses as to part of submitted data may suffice to support a refusal by Commerce to rely on any of that data in calculating the anti-dumping duty. Ad Hoc Shrimp Trade Action Comm. v. United States, 802 F.3d 1339, 1355-57 (Fed. Cir. 2015) (approving a finding that the respondent’s credibility was “impeach[ed] ... as a consequence of evidence reasonably indicating that [the respondent] deliberately withheld and misrepresented information, and these misrepresentations may reasonably be inferred to pervade the data in the record beyond that which Commerce has positively confirmed as misrepresented” (internal quotation marks omitted) (quoting Ad Hoc Shrimp Trade Action Comm. v. United States, 992 F.Supp.2d 1285, 1293 (Ct. Int’l Trade 2014))). Koehler has not persuasively shown why Commerce could not take that approach in the circumstances of this case, where Commerce reasonably found that Koehler intentionally submitted materially false responses. Thus, Commerce could, in this case, find none of Koehler’s original home-market sales data so “reliable or usable” as to block an otherwise-permissible adverse inference. Zhejiang DunAn Hetian Metal Co. v. United States, 652 F.3d 1338, 1348 (Fed. Cir. 2011).

B

We see no reversible error in Commerce’s adoption of a 75.36% rate from Appvion’s petition, which Commerce sufficiently corroborated using Koehler’s own data (which it could assume was not skewed against Koehler).

Under 19 U.S.C. § 1677e(b)(l) (2012), “the petition” is one source of information Commerce may tap when drawing an adverse inference under § 1677e(b). The statute thus expressly permitted Commerce to turn to Appvion’s petition, and that authorization does not exclude petition numbers that are based on information other than the (uncooperative) respondent’s own sales. Indeed, Commerce asserts, without disproof from Koehler, that Commerce’s “longstanding practice” when making adverse inferences is to “select the higher of: (1) the highest margin stated in the notice of initiation; or (2) the highest margin calculated for any respondent.” J.A. 1947.

. That is not the end of the inquiry. Commerce must, “to the extent practicable, corroborate .that, information from independent sources that are reasonably at [its] disposal.” 19 U.S.C. § 1677e(c) (2012). Both the authoritative Statement of Administrative Action and a Commerce regulation, in turn, declare that corroborating information means determining that it “has probative value.” Statement of Administrative Action, H.R. Rep. No. 103-316, vol, 1, at 870, as reprinted in 1994 U.S.C.C.A.N. at 4199 (“Corroborate means that the agencies will satisfy themselves that the secondary information to be used has probative value,”); 19, C.F.R. § 351.308(d) (“Corroborate means that the Secretary will examine whether the secondary information to be used has probative value.”).

The facts of which the figure being corroborated must be “probative” are' the facts made relevant by the statute. We said in F.lli De Ceceo Di Filippo Fara S. Martino S.p.A. v. United States, 216 F.3d 1027 (Fed. Cir. 2000), that Congress intended an adverse-inference rate “to be a reasonably accurate estimate of the respondent’s actual rate, albeit with some built-in increase intended as a deterrent to non-compliance,” not an “unreasonably high rate[] with- no relationship to the respondent’s actual dumping margin,” and that Commerce has wide, though not unbounded, discretion “to select adverse facts that will create the proper deterrent to non-cooperation with its investigations and assure a reasonable margin.” Id. at 1032. We reiterated those points in Gallant Ocean (Thailand) Co. v. United States, 602 F.3d 1319 (Fed. Cir. 2010), while also criticizing Commerce for ignoring the respondent’s “commercial reality.” Id. at 1323-24. Recently, we “clarified] that ‘commercial reality’ and. ‘accurate’ represent reliable guideposts for Commerce’s determinations,” but “[t]hose terms must be considered against what the antidumping statutory scheme demands.” Nan Ya Plastics Corp. v. United States, 810 F.3d 1333, 1343 (Fed. Cir. 2016), Thus, “a Commerce determination (1) is ‘accurate’ if it is correct as a mathematical and factual matter, thus supported by substantial evidence; and (2) reflects ‘commercial reality’ if it is consistent with the method provided in the statute, thus in accordance with law.” Id. at 1344.

Under those standards, Commerce has satisfied the statute: in particular, the figure it chose has probative value as to the combination of accuracy and deterrence our cases have discussed. The record here includes the data that Koehler submitted in the second administrative review. Commerce, looking at that data, - determined that the rate it chose “fell within the range of transaction-specific margins calculated in [the second administrative review].” J.A. 1948, The key graph Koehler relies on shows that, while most sales in that dataset were made with'margins between -10% and 30%, one sale showed a margin of almost 50%, and one a margin of 144.63%. Commerce further found that “[t]he margin calculation data from [the second administrative review] is relevant for purposes of corroboration because it is Koehler’s own data and thus reflective of its commercial practices.” J.A, 1948. In several cases, we have upheld Commerce’s use of a party’s own data for corroboration, even where that data represents a small portion of the total sales available and supports a rate that is much higher than rates applied to the respondent in previous segments of the proceeding or to other respondents in the same segment. See PAM, S.P.A. v. United States, 582 F.3d 1336, 1340 (Fed. Cir. 2009) (upholding a dumping margin of 45.49% based on 29 sales made at margins higher than that, representing 0.5% of PAM’s total U.S. sales during a prior period, even after the Court of International Trade had previously remanded that same rate for corroboration because it had looked so high as to be punitive); Ta Chen Stainless Steel Pipe, Inc. v. United States, 298 F.3d 1330, 1339 (Fed. Cir. 2002) (upholding a dumping margin of 30.95% based on a single sale' made by Ta Chen at that margin representing 0.04% of Ta Chen’s sales during that period because “the 30.95% dumping margin is corroborated by actual sales data, and Ta Chen admits that it is reflective of some, albeit a small portion, of Ta Chen’s actual sales”). We see no reason for a different conclusion as to the permissibility of Commerce’s corroboration determination here.

Koehler argues that the sale in the second administrative review reported With a 144.63'% margin was aberrational and so could not be used to corroborate the petition rate. But the mere fact that a margin is' unusually ’ high does not mean that it lacks probative value and hence cannot be used for corroboration. See Nan Ya, 810 F.3d at 1347 (stating, in the context of applying § 1677e(b), that ,“[t]he statute simply does not require Commerce to select facts that reflect a certain amount of sales, yield a particular margin, fall within a continuum according to the application of particular statistical methods,- or align with standards articulated in other statutes and regulations”); PSC VSMPO-AVISMA Corp. v. United States, 755 F.Supp.2d 1330, 1338 & n.10 (Ct. Int’l Trade 2011) (refusing to treat a sale with unusually low quantity and unusually high freight expenses as an outlier because Commerce’s investigation showed that neither of those factors were correlated to the sale’s high margin and explaining that “the fact that this sale has the highest transaction-specific margin by a wide margin ... in and of itself, does not automatically render the rate aberrational”), aff’d, 498 Fed.Appx. 995 (Fed. Cir. 2013). Nor does the fact that the 144.63%-margin sale represents only 0.03% of Koehler’s total sales make it improper for Commerce to rely on it. See PAM, 582 F.3d at 1340.

What Commerce did with the second-review Koehler data was reasonable. Commerce could assume, as an adverse inference, that Koehler’s margins throughout the second administrative review period were artificially depressed because Koehler admitted that it had been engaged in the transshipment scheme during that time as well as the period covered by the third administrative review. The actual rate Commerce adopted (75.36%) was only about half the rate Koehler complains is so aberrational as to be unreliable (144.63%). And the next highest margins in the second-review dataset, which Koehler does not challenge, do not have the single-digit or near-zero rates Koehler urges are appropriate, but consist of one sale made at a 48.68% margin and 18 sales made with margins between 20% and 30%. We note that Commerce is not required to “corroborate corroborating data,” Nan Ya, 810 F.3d at 1349, but merely satisfy itself that it has probative value.

Our decision in Gallant Ocean, is not to the contrary. There, we held that Commerce had failed to corroborate the rate it chose because it had failed to “identify any relationship between” the data it used for corroboration and the respondent’s actual rate. 602 F.3d at 1324. The Gallant Ocean court distinguished Ta Chen and PAM as cases in which Commerce had tied the rate chosen to the respondents’ actual sales. Id. at 1324-25. Here, as in Ta Chen and PAM, Commerce has. tied its chosen rate to Koehler’s actual sales, and in doing so has adequately corroborated that rate.

Finally, Koehler complains that the rate is punitive, and therefore statutorily improper, because it is over eleven times higher than the highest calculated rate imposed on Koehler in any prior review. But we have held that as long as a rate is properly corroborated according to the statute, Commerce has acted within its discretion and the rate is not punitive. KYD, Inc. v. United States, 607 F.3d 760, 768 (Fed. Cir. 2010) (upholding a rate of 122.88%, sixty-five times higher than any previously calculated rate, because “an AFA dumping margin determined in accordance with the statutory requirements is not a punitive measure, and the limitations applicable to punitive damages assessments therefore have no pertinence to duties imposed based on lawfully derived margins such as the margin at issue in this case”); Ta Chen, 298 F.3d at 1340 (“While Gommerce may have chosen the 30.95% rate with an eye toward deterrence, Commerce acts within its discretion so long as the rate chosen has a relationship to the actual sales information available.”).

C

We see no reversible error in Commerce’s refusal to accept Koehler’s revised home-market sales data.

1. The refusal does not violate 19 U.S.C. § 1677m(e), which in some circumstances does require consideration of information. Under that provision, Commerce “shall not decline to consider information that is submitted by an interested party and is necessary to the determination but does not meet all the applicable' requirements” as long as all five requirements listed in that subsection are met. Id. Commerce found that Koehler had not met at least three of these requirements — that the information be “submitted by the deadline,” that “the information can be verified,” and that “the interested party has demonstrated that it acted to the best of its ability in providing the information and meeting the requirements established by the administering authority.” Because substantial evidence supports at least one of those findings — indeed more than one— there is no violation of § 1677m(e).

For example, substantial evidence supports Commerce’s determination that Koehler has not “demonstrated that it acted to the best of its ability in providing the information and meeting the requirements established by [Commerce],” as required by § 1677m(e)(4). Koehler has admitted that it submitted fraudulent sales data. Although Koehler claims that it did its best because it attempted to correct the data as soon as its “senior management” learned of the misreporting, Commerce was entitled, as discussed above, to hold Koehler responsible for the conduct of its employees. Thus, Koehler’s concealment of data shows that it was not acting to the best of its ability. See Nippon Steel, 337 F.3d at 1383 (“intentional conduct, such as deliberate concealment or inaccurate reporting, surely evinces a failure to cooperate”).

. .As a second example, substantial evidence also supports Commerce’s determination that the information was untimely. While the revised data was submitted on June 27, 2012, the (twice-extended) deadline for response to the supplemental questionnaire, Commercé explained that the supplemental questionnaire had not requested revised data — only that Koehler explain and identify certain seeming discrepancies among its original questionnaire responses. Therefore, as home market-sales data, the revised data should have been submitted by the original deadline for submission of that data, which had passed before the supplemental questionnaire was issued. Koehler does not argue that the supplemental questionnaire requested revised data. Rather, it argues that Commerce implicitly allowed an extension to submit revised dáta by’granting Koehler’s motion for an extension of time, because the motion explained that Koehler needed more time “for counsel to conduct due diligence in connection with the substance of the [transshipment] allegations” and “some of the .questions in the Department’s supplemental questionnaire concern the same set of facts [as the transshipment allegations].” J.A. 958-59. But Commerce clarified in its final results that it had allowed the extension of time only to the extent that it was necessary to completely and accurately respond to the supplemental questionnaire. Commerce’s boilerplate characterization of the reasons in Koeh-ler’s request for an extension as “unique circumstances” does not amount to a grant of permission to submit data outside the scope of the initial request.

2. Koehler also argues that Commerce violated 19 U.S.C. § 1677m(d) in refusing to accept the updated data. We disagree.

The second sentence' of the subsection refers to an obligation to accept submitted information in certain circumstances. But it does so only implicitly, in the course of declaring that Commerce has authority to “disregard” information, “subject to subsection (e).” That language invokes the separately stated obligation of § 1677m(e). As just' discussed, § 1677m(e) did not oblige Commerce to accept Koehler’s data here.

The first, more general sentence of § 1677m(d) states that, where “a response to a request for information under this subtitle does not comply with the request,” Commerce must “promptly inform the person submitting the response of the nature of the deficiency and shall, to the extent practicable, provide that person with an opportunity to remedy or explain the deficiency.” Id. (emphases added). But nothing in that language compels Commerce to treat intentionally incomplete data as a “deficiency” and then to give a party that has intentionally submitted incomplete data an opportunity to “remedy” as well as to “explain.” The consequence of such a reading would be to permit respondents to submit fraudulent data with the knowledge that, should their misconduct come to light, they can demand an opportunity to remedy their intentionally deficient data and avoid the otherwise-authorized adverse inferences. The language of § 1677m(d) does not compel that reading. It permits Commerce not to deem such misconduct to be a “deficiency” or to provide only an opportunity to “explain” (but not “remedy”) such misconduct. Here, Commerce did both.

Commerce “emphasize[d]” that “the ‘deficiency’ at issue did not come about because Koehler inadvertently omitted a number of sales,” “due to an unintentional computer programming error,” or “because of a misunderstanding of the Department’s questionnaire instructions.” J.A. 1938. Rather, “[t]he ‘deficiency’ in Koehler’s questionnaire responses occurred because Koehler intended to submit deficient, incomplete, and fraudulent questionnaire responses to the Department.” Id. Section 1677m(d), which requires Commerce to “inform the person submitting the response of the nature of the deficiency,” is readily understood not to apply to the situation here, where Koehler was already aware óf and caused the “so-called deficiency.” J.A. 1938, 1940 (“Accordingly, we find Koehler’s arguments that the Department ‘unlawfully denied Koehler an opportunity to remedy its deficiency ...’ to be disingenuous. Koehler did not need the Department to ‘promptly inform {Koehler} of the nature of the deficiency.’” (alteration in original)). And in any event, Commerce gave Koehler an opportunity to explain its conduct. Section 1677m(d) was satisfied.

3. Finally, Koehler argues that, even if Commerce had no statutory obligation to consider its updated data, Commerce nevertheless abused its discretion in refusing to accept the data. In, several circumstances, we have held that Commerce abused its discretion in refusing to accept updated data when there was plenty of time for Commerce to verify or consider it. NTN Bearing Corp. v. United States, 74 F.3d 1204, 1207-08 (Fed. Cir. 1995) (requiring” correction of typing errors); Timken U.S. Corp. v. United States, 434 F.3d 1345, 1353 (Fed. Cir. 2006) (expanding the holding in NTN to “any type of importer error — clerical, methodology, substantive, or one in judgment — ... provided that the importer seeks correction before Commerce issues its final results and adequately proves the need for the requested corrections”). But those cases involved errors quite different from fraud. Here, Commerce did not abuse its discretion in denying Koehler a chance to correct data infected by intentional concealment of relevant information, when the concealment was discovered by another party to the proceeding.

III

For the foregoing reasons, we affirm the judgment of the Court of International Trade.

AFFIRMED

      . Although Congress has recently amended the subsection of 19 U.S.C. § 1677e relating to corroboration of secondary information, that amendment was not retroactive and took effect on June 29, 2015, after Commerce’s determination here. Trade Preferences Extension Act of 2015, Pub. L. No. 114-27, 129 Stat. 362; Ad Hoc Shrimp, 802 F.3d at 1352.


source: Caselaw Access Project

author: STAHL, Circuit Judge.

license: Public Domain

text:
    Scott PHILLIPS, individually and on behalf of all others similarly situated, Plaintiff, Appellant, v. EQUITY RESIDENTIAL MANAGEMENT, L.L.C., Defendant, Appellee.
    No. 16-1254
    United States Court of Appeals, First Circuit.
    December 12, 2016

      David Pastor, with whom Pastor Law Office LLP, Joshua N. Garick, Woburn, MA, Law Office of Joshua N. Garick, Preston W. Leonard, and Leonard Law Office PC, Boston, MA, were on brief, for appellant.
    Craig M. White, with whom Baker & Hostetler LLP, Chicago, IL, Thomas H, Wintner, and Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., Boston, MA, were on brief, for appellee.
    Before LYNCH, STAHL, and BARRON, Circuit Judges.
   STAHL, Circuit Judge.

This dispute arises out of a class action brought by Scott Phillips against his former landlord, Equity Residential Management, L.L.C. (“ERM”). Phillips alleged that ERM violated several provisions of the Massachusetts Security Deposit Law (“Security Deposit Law”), Mass. Gen. Laws ch. 186, § 15B, relating to unlawful charges or deductions taken against his security deposit and ERM’s failure to return the security deposit within thirty days after he moved out of his leased apartment. The purported class consisted of other former tenants of ERM-owned or managed apartments who also, since August 6, 2009, had these same grievances. As recompense, Phillips sought recovery under the Security Deposit Law’s penalty provision, Mass. Gen. Laws ch. 186, § 15B(7), which includes, inter alia, the availability of treble damages.

At summary judgment, the district court awarded Phillips a Pyrrhic victory: though he was entitled to recover his security deposit (less a small amount of holdover rent), the district court refused to apply Section 15B(7), and soon after denied his class certification motion on mootness grounds. Phillips challenges these rulings on appeal, arguing that the district court should have ruled on his class certification motion before the parties’ summary judgment motions, that his class certification motion should not have been dismissed as moot, and that he was entitled to recovery under Section 15B(7).

Phillips’s last contention is of particular importance, since the outcome turns on provisions of the Massachusetts Security Deposit Law that have not been interpreted by the Massachusetts Supreme Judicial Court (“SJC”) in over three decades. See Mellon v. Berman, 390 Mass. 275, 454 N.E.2d 907, 910-13 (1983). Generally, we must make an “informed prophecy” as to how the highest state court would rule on questions of that state’s law. Ambrose v. New Eng. Ass’n of Schs. & Colls., Inc., 252 F.3d 488, 497-98 (1st Cir. 2001) (“Our task ... is to discern the rule the state’s highest court would be most likely to follow under these circumstances, even if our independent judgment might differ.”). The SJC’s guidance in this area, however, is “sufficiently undeveloped ... so as to make such prophetic action unwise,” see Showtime Entm’t, LLC v. Town of Mendon, 769 F.3d 61, 79 (1st Cir. 2014). For this reason and the others that follow, we certify a question regarding the relevant provisions of the Massachusetts Security Deposit Law to the SJC, and refrain from deciding the merits of Phillips’s other claims until that question is resolved. See Mass. S.J.C. R. 1:03; see also, e.g., Easthampton Sav. Bank v. City of Springfield, 736 F.3d 46, 48, 50-53 (1st Cir. 2013).

I.

We recite the facts relevant to the certified question. Phillips and a friend, Sean Ostriker, entered into a written lease with ERM for an apartment located at Long-view Place in Waltham, Massachusetts. The lease term lasted from July 20, 2012 to May 19, 2013. In accordance with the lease, Phillips paid ERM a $750.00 security deposit prior to move-in, and he requested its return shortly after vacating the apartment on May 20, 2013. After receiving his request, ERM sent Phillips a signed Statement of Deposit Account (“SODA”) listing charges against his security deposit totaling $968.08. The SODA credited $750.06 against this amount, reflecting Phillips’s $750.00 security deposit and $0.06 in accumulated interest, and claimed a balance due of $218.02.

On August 6, 2013, Phillips filed a class action complaint against ERM in Massachusetts Superior Court. He alleged .that ERM had violated the Security Dep'osit Law by: (1) not providing him, within thirty days of his vacating the apartment, sufficiently detailed written evidence of damages for which funds were deducted from his security deposit, (2) not providing him with an • itemized list of damages sworn to under the pains and penalties of perjury, and (3) impermissibly deducting certain cleaning charges from his security deposit. ERM removed the case to the United States District Court for the District of Massachusetts based on diversity of citizenship, see 28 U.S.C. § 1332(d), and counterclaimed for the $218.02 balance outlined in the SODA.

Soon. after,. both Phillips and ERM moved for summary judgment. The district court found that ERM did not comply with Mass. Gen. Laws ch. 186, § 15B(4)(iii), which required ERM to provide Phillips with “an itemized list of damages” sworn to “under pains and penalties of perjury.” Phillips v. Equity Residential Mgmt., No. 13-12092, 2015 WL 12733438, at *3 (D. Mass. Dec. 14, 2015). This failure, the court concluded, also resulted in a second violation under a separate provision of the Security Deposit Law since Phillips did not receive the required “itemized list of damages ... in compliance with the provisions of [Section 15B]” within thirty days after the termination of his tenancy. Id (quoting Mass. Gen. Laws ch. 186, § 15B(6)(b)). Based on this second violation, the district court held that ERM forfeited its right to retain any part of Phillips’s security deposit. Id.; see also Mass. Gen. Laws ch. 186, § 15B(6) (stating that a lessor “shall forfeit [the] right to retain any portion of [a tenant’s] security deposit for any reason” if the lessor violates any provision of Section 15B(6)).

Phillips nonetheless insisted that ERM’s Section 15B(6)(b) violation resulted in a third Security Deposit Law violation under Mass. Gen. Laws ch. 186, § 15B(6)(e). That provision provides that a lessor must “return to the tenant the security deposit or balance thereof to which the tenant is entitled after deducting therefrom any sums in accordance with the provisions of this section, together with any interest thereon, within thirty days after termination of the tenancy.” Id.

The alleged Section 15B(6)(e) violation, Phillips continued, activated yet another Security Deposit Law provision, Mass. Gen. Laws ch. 186, § 15B(7). Section 15B(7) awards tenants “three times the amount of [their] security deposit or balance thereof to which the tenant is entitled plus interest at the rate of five per cent from the date when such payment became due, together with court costs and reasonable attorney’s fees” if the lessor or his agent fails to comply with clauses (a), (d), or (e) of Section 15B(6). Id.

The district court, however, refused to entertain Phillips’s argument, finding that ERM only violated Section 15B(6)(e). because of its violation of Section 15B(6)(b). Phillips, 2015 WL 12733438, at *4. Under Phillips’s reading of the statute, the court reasoned, any violation of Section 15B(6)(b) would result in a violation of Section 15B(6)(e), making Section 15B(6)(b) redundant. Id. Since Section 15B(6)(b) is not listed in Section 15B(7), the district court also inferred that Section 15B(6)(b) was excluded from its list “by deliberate choice.” Id. at *3. Thus, the district court limited Phillips recovery to $647.58. This appeal followed.

II.

A federal court is permitted to certify questions to the SJC “if there are involved in any proceeding before it questions of law of [Massachusetts] which may be determinative of the cause then pending in the certifying court and as to which it appears to the certifying court there is no controlling precedent in the decisions of this court.” Mass. S.J.C. R. 1:03; see also In re Engage, Inc., 544 F.3d 50, 52-53 (1st Cir. 2008); Bos. Gas Co. v. Century Indem. Co. 529 F.3d 8, 13-15 (1st Cir. 2008). We conclude that this case meets those requirements.

To start, issues of state law are determinative. If the SJC concludes that a violation of Section 15B(6)(b) does not also constitute a violation of Section 15B(6)(e) for Section 15B(7) purposes, then that answer shall be determinative as to Phillips’s personal claim. In other words, Phillips will only receive “the full measure of relief [he] seek[s]” if the SJC agrees with his position that Section 15B(7) is invoked in' such circumstances. See Easthampton Sav. Bank, 736 F.3d at 50; see also Bos. Gas Co., 529 F.3d at 15 (certifying questions to the SJC that were “determinative of the scope” of the plaintiffs claim).

Meanwhile, we have- interpreted the SJC’s second requirement that there be no controlling precedent as preventing certification “in cases when ‘the course [the] state court[] would take is reasonably clear.’ ” Easthampton Sav. Bank, 736 F.3d at 51 (alterations in original) (quoting In re Engage, 544 F.3d at 53). The course that a state court would take is not reasonably clear when a case “presents a close and difficult legal issue.” Id. As we will explain, such is our current predicament.

The district court’s interpretive methodology admittedly has a certain intuitive appeal: the Massachusetts Legislature deliberately excluded Sections 15B(6)(b) and (c) from Section 15B(7)’s list, suggesting that violations of these provisions are excused from the Security Deposit Law’s enhanced penalties. Similarly, if violations of Section 15(6)(b) also necessarily constituted violations of Section 15B(6)(e), both sections may lose their independent meaning. See Blum v. Holder, 744 F.3d 790, 803 (1st Cir. 2014) (“Avoidance of redundancy is a basic principle of statutory interpretation.”).

The Security Deposit Act’s recognized purpose and legislative history, however, complicate matters. The SJC has noted that the Security Deposit Law “manifest[s] a concern for the welfare of tenants ... who, as a practical matter, are generally in inferior bargaining positions and find traditional avenues of redress relatively useless.” Mellor, 454 N.E.2d at 912 (internal citation and quotation marks omitted). Nonetheless, some Massachusetts courts emphasize that “the purpose of § 15B is seen not to be arbitrarily penal; rather, the ‘underlying goal [is to establish] an “equitable relationship”’ between tenants and landlords.” Castenholz v. Caira, 21 Mass.App.Ct. 758, 490 N.E.2d 494, 497 (1986) (alteration in original) (quoting McGrath v. Mishara, 386 Mass. 74, 434 N.E.2d 1215, 1222 (1982)).

Mellor similarly traces the gradual evolution of the Security Deposit Law:

In 1969, § 15B merely stated that a lessor might not require a security deposit in an amount in excess of two months’ rent. One year later the Legislature added a penalty of double damages for the wilful withholding of a tenant’s security deposit. The requirement in the multiple damages provision of a wilful violation was deleted by the Legislature in 1972 and has remained omitted despite substantial changes in the form of the legislative controls on security deposits. The deletion of the requirement of a finding of bad faith was not accidental.

454 N.E.2d at 912-13 (citations omitted).

Later changes to the statutory framework further subjected landlords to larger potential monetary penalties (i.e., Section 15B(7)). Massachusetts Security Deposit Law, ch. 979, sec. 1, § 15B(7), 1977 Mass. Acts 1418, 1418-25 (1978). The Legislature, however, also identified a landlord’s obligations under the Security Deposit Act with more specificity and limited Section 15B(7)’s application to only certain of those violations. Id.

One potential reading of Section 15B’s evolution suggests that the legislature wished to empower tenants, but in a limited and balanced way. Nonetheless, certain Massachusetts courts view the history differently and suggest that the Legislature’s significant interest in compliance with Section 15B’s requirements warrants a broad application of its penalty provision. See Taylor v. Beaudry, 82 Mass.App.Ct. 105, 971 N.E.2d 313, 318 (2012) (Taylor II) (“[T]he Legislature thought the deterrent effect of [these] suits ... was necessary to ensure all landlords return security deposits on time and in full compliance with the statute.”).

As previously mentioned, the SJC has not provided guidance on these provisions of the Security Deposit Law in 33 years. See Mellor, 454 N.E.2d at 907. And in the guidance provided, the SJC has not opined on how or whether a lessor’s noncompliance with Section 15B(4)(iii) might lead to violations of Sections 15B(6)(b) and (e) and subsequent penalties under Section 15B(7). See id. at 909 n.4, 913 (declining to consider the issue and limiting its inquiry to whether a lessor’s good faith mitigated against awarding damages under Section 15B(7)).

Despite this lack of clarity, the district court made its ruling notwithstanding two Massachusetts state court decisions construing the interplay between Sections 15B(6)(b), (6)(e), and (7). See Taylor v. Beaudry, 75 Mass.App.Ct. 411, 914 N.E.2d 931, 933-36 (2009) (Taylor I), review denied 455 Mass. 1108, 920 N.E.2d 44 (Table) (Mass. 2009); Carter v. Seto, 2005 Mass.App.Div. 62, 2005 WL 1383337, at *4-5 (Mass.App.Div. 2005), aff'd, 66 Mass.App. Ct. 1114, 849 N.E.2d 925 (Table) (Mass.App.Ct. June 29, 2006), review denied, 447 Mass. 1108, 853 N.E.2d 1059 (Table) (Mass. 2006).

In Taylor I, a tenant vacated his apartment on August 31, 2007. 914 N.E.2d at 932. By mail postmarked October 1, 2007, the landlord sent the tenant a check covering his security deposit and accrued'interest, minus charges for cleaning and repairs to the tenant’s apartment. Id. Accompanying the check was an undated letter detailing the charges, but the letter was not signed under the pains and penalties of perjury as required by Section 15B(4)(iii). Id. In response, the tenant'filed a complaint claiming that the landlord had,violated Section 15B(6)(b) by not providing him with , an itemized list of damages in compliance with the provisions of Section 15B, and therefore had forfeited any right to the entire security deposit. Id. The tenant also claimed that the. landlord had violated Section 15B(6)(e) because the landlord did not return any portion of the security deposit-within thirty days after the end of his. tenancy. Accordingly, the tenant sought a judgment- for three times the total amount of his deposit, plus interest, costs, and reasonable attorney’s fees, pursuant to Section 15B(7). Id.

The court concluded that the landlord’s conduct had triggered Section 15B(7), and stated that. Section 15B(6)(e)’s “statutory obligation to return the deposit is clear, as is the time within which the deposit must be returned.” Id. at 416, 914 N.E.2d at 935. It went on, however, to declare that “failure to return the security deposit, less any amounts = that § 15B(4)(iii) permits the landlord to retain, within [thirty days] subjects the.landlord to” Section 15B(7) damages. Id. at 417, 914 N.E.2d at 936.

Carter presented a similar factual scenario but was more explicit in its reasoning. In that case, tenants sued under Section 15B after receiving a letter from their previous landlord stating that they could recover only $270.22 of their $2,150,00 security deposit. Carter, 2005 WL 13833B7, at *2. The letter, which itemized the damages charged against the security deposit, was not signed under the pains and penalties of perjury and did not include any repair bills or estimates to substantiate these charges. Id. Unlike in Taylor I, the letter was dated only nineteen days after the tenants relinquished possession of the apartment. Id. at *1-2.

The court ultimately determined that the letter was noncompliant with Section 15B(4)(iii) and that the landlord’s “failure to submit a properly sworn itemized list of security deposit deductions within the time mandated by the statute resulted in a forfeiture of [the landlord’s] right to retain any portion of the security deposit.” Id. at *4. The landlord was therefore required to return the full amount of the security deposit within thirty days of the termination of the tenancy and did not do so, resulting in a violation of Section 15B(6)(e). Id. The court then awarded the tenants damages pursuant to Section 15B(7). Id.

Given Taylor I and Carter’s factual similarities to the current ease, these two decisions raise a measure of doubt that the SJC would agree with the district court’s interpretation. Thus, although the statutory provisions to be applied in this case are readily apparent, “the application of those [statutes] is difficult, and the outcome far from certain.” See Easthampton Sav. Bank, 736 F.3d at 51.

Nonetheless, “[t]hat a legal issue is close or difficult Is not normally enough to warrant certification, or else diversity cases would regularly require appellate proceedings in two courts.” Bos. Gas Co., 529 F.3d at 15. Additional factors, including “the dollar amounts involved, the likely effects of a decision on future cases, and federalism interests,” guide our decision of whether to certify questions to the SJC. See Easthampton Sav. Bank, 736 F.3d at 52.

Though Phillips’s individual claim may revolve around a relatively small $750,00 security deposit, the outcome of the case has the potential to impact a large swath of current and future tenancies throughout Massachusetts. See id. (certifying questions to SJC partly because the outcome of the case “ha[d] the potential to impact thousands of outstanding and future mortgages” across'■ Massachusetts). The many residential landlords operating in the Commonwealth, meanwhile, rely on interpretations of these important provisions of the Security Deposit Law-when structuring their business activities. The case also involves interpretation of a state statute governing an area of traditional state authority. See Conille v. Sec’y of Hous. & Urban Dev., 840 F.2d 105, 111 (1st Cir. 1988) (stating that “the area of landlord-tenant law ... typically has been the province of state courts and legislatures.”). Certifying questions about these issues thus “promotes ‘strong federalism interests.’ ” Easthampton Sav. Bank, 736 F.3d at 53 (quoting Real Estate Bar Ass’n for Mass., Inc. v. Nat’l Real Estate Info. Servs., 608 F.3d 110, 119 (1st Cir. 2010)).

III.

For the above reasons, we certify the following question of Massachusetts law to the SJC:

1. With respect to the Massachusetts Security Deposit Law, Mass. Gen. Laws ch. 186, § 15B, when a lessor violates the terms of Section 15B(4)(iii), does the lessor’s corresponding violation of Section 15B(6)(b), which “forfeits] his right to retain any portion of the security ■ deposit for any reason,” id § 15B(6), also constitute a violation of Section 15B(6)(e)—“ “failing] to return to the tenant the security deposit or balance thereof to which the tenant is entitled ... within thirty days after termination of the tenancy”— thereby triggering the statute’s treble damages provision, Section 15B(7)?

We would also welcome any other comments that the SJC may wish to offer on any relevant aspects of Massachusetts law. The Clerk of this court is directed to forward to the SJC, under the official seal of this court, a copy of the certified question and our opinion in this case, along with copies of the parties’ briefs and appendices. We retain jurisdiction over this appeal pending resolution of the certified question.

So ordered.

      . The purported class also consisted of two subclasses, a "Sworn Statement Subclass" and a “Cleaning Charge Subclass.” These subclasses relate to Phillips’s contention that ERM violated several different provisions of the Security Deposit Law and that his claims are typical of the claims of each subclass. The merits of Phillips’s proposed class, however, are not before this court.

      . The district court determined that "Phillips no longer ha[d] a live individual case because all of his claims have been decided" and ”[a]s a result, proceeding to class certification [would be] inappropriate.”

      . Ostriker moved out of the apartment in December'2012 and arranged for one of Phillips's fraternity brothers, Gil Jacobs, to take his place. Jacobs moved into the apartment in February 2013. Jacobs, however, moved out in April 2013, leaving Phillips as the sole tenant.

      . The charges included unpaid rent, a late payment fee, apartment and carpet cleaning charges, a carpet replacement charge, and an "Other Phys Damages” charge. ■

      .Phillips emailed ERM to request the return .of his security deposit on May,28, 2013. He claims that ERM sent; him his SODA detailing the charged damages to the apartment in “late May or Early June,” though the record suggests that it was mailed that same day. Phillips's father, a guarantor of his son's lease, later sent an email to ERM on June 23, 2013 (thirty-four days after Phillips had vacated the apartment) asserting that the SODA did not comply with Section 15B's requirements.

      . The amount reflects the district court’s holding that Phillips was entitled to recover his $750.00 security deposit, but nonetheless owed ERM $102.42 in holdover rent since Phillips conceded that he stayed in thfe apartment one day past the date on which he had agreed to vacate. Id. at *5.

      . Although neither party requested certification, "we have the discretion to certify questions to the SJC sua sponte.” Easthampton Sav. Bank, 736 F.3d at 50 n.4. At oral argument, we asked the parties whether certification on this issue was appropriate. Neither party objected to certification, though both questioned the judicial economy of sending Phillips’s $750 claim to the SJC. Still, both parties conceded that certification might be “appropriate” and a "viable option.” Regardless, the SJC "has previously answered questions certified even over the objections of both parties.” Id. (citing Knapp Shoes, Inc. v. Sylvania Shoe Mfg. Corp., 418 Mass. 737, 640 N.E.2d 1101, 1101-02 (1994) (answering certified question); and Knapp Shoes, Inc. v. Sylvania Shoe Mfg. Corp., 15 F.3d 1222, 1224 (1st Cir. 1994) (noting objections to certification)).

      . The court noted that "[a]t some point shortly after receiving the [tenant's] complaint, the landlord returned to the tenant the balance of the security deposit.” Id, However, “the record [was] clear that [the landlord] did not return the balance within thirty days following termination of the tenancy." Id. at 412-13, 914 N,E.2d at 933,


author: BURROUGHS, District Judge.

text:
    UNITED STATES of America, Appellee, v. Fernando DASILVA, Defendant, Appellant.
    No. 15-2103
    United States Court of Appeals, First Circuit.
    December 16, 2016

      Tara I. Allen, Sacramento, CA, for appellant.
    Donald C. Lockhart, Assistant United States Attorney, with whom Peter F. Ne-ronha, United States Attorney, was on brief, for appellee.
    Before LYNCH and SELYA, Circuit Judges, and BURROUGHS , District Judge.

       Of the District of Massachusetts, sitting by designation.

   BURROUGHS, District Judge.

Defendant Fernando DaSilva pled guilty to failing to -register as a sex offender in violation of the Sex Offender -Registration and Notification Act (SORNA), 18 U.S.C. § 2250(a). On appeal, he challenges several of the conditions of supervised release that the district court imposed in connection with his sentence, including sex offender treatment and provisions restricting contact with minors. We hold that the conditions are reasonable, but remand for further clarification consistent with, this opinion.

I. Background

The defendant plead guilty in 2015 to violating the registration, requirements of SORNA and was sentenced to time served, as well as five years of supervised release. He admitted that he was convicted of possession of child pornography by a Rhode Island state court in 2006, that he was required to register as a sex offender as a result, and that, in early 2015, he moved from Pawtucket, Rhode Island to Fall River, Massachusetts without updating his registration.

The facts related to defendant’s 2006 child pornography conviction are as follows. In November 2005, the defendant’s car was pulled over by police because he was wanted on open warrants and his driver’s license was suspended. A 14-year-old girl was a passenger in the car. The girl had been reported as missing and was wanted on a truancy warrant. While searching the car, police found two photographs of the girl in which she was nude and exposing her genital area in a sexually suggestive pose. • The defendant admitted that the photos had been in his possession for over a week, but claimed that he was not present when they were taken and had no knowledge of the circumstances around them. He also said that he did not engage in any sexual conduct with the girl, even though he had been living with her 'in his car and at the homes of friends for a week. The defendant ’knew the girl had a truancy warrant. He also said they used crack cocaine together. He was 35 at the time of the arrest. In March 2006, he pled guilty to possession of child pornography and driving with a suspended license. He was sentenced to five years’ imprisonment on the possession charge and a óne-year concurrent term on the driving charge.

The defendant has. an extensive criminal record from 1989 through 2005, including convictions for larceny, breaking and entering with intent to commit a felony, driving a stolen vehicle, possessing cocaine, possessing a stolen vehicle, receiving stolen goods, escape by an inmate, possessing a weapon, and obstructing a police officer. After the defendant was released from prison on the child pornography conviction, he was additionally convicted of possessing marijuana (2010), possessing crack cocaine (2011), and disorderly conduct (2012).

In September 2015, the district court sentenced the defendant to time served on the SORNA violation, followed by five years of supervised release. The court also imposed the following conditions of release, to which the defendant objects on appeal:

Special condition 5. The defendant shall “participate in sex offender treatment as directed by the probation officer and, as an adjunct to that treatment, to submit to periodic polygraph testing at the discretion of the probation office to ensure that you are in compliance with the requirements of your supervision and treatment.”

Special condition 8. The defendant shall “have no contact with any child under the age of 18, with the exception of your own children, without the presence of an adult who is aware of your history and who is approved in advance by the probation officer.”

Special condition 9. The defendant shall not “loiter in areas where children congregate [including] but not limited to, schools, day care centers, playgrounds, arcades, amusement parks, recreation parks, and youth sporting events.”

Special condition 10. The defendant shall not “be employed in any occupation, business, or profession, or participate in any volunteer activity where there is access to children under the age of 18, unless authorized in advance by the probation officer.”

Special condition 11. The defendant shall “live at a residence approved by the probation office, and not reside with anyone under the age of 18, [with the exception of your own children,] unless approved, in advance, by the probation office.”

The defendant’s counsel raised general, somewhat pro forma objections to the conditions at sentencing. The defendant now appeals, arguing that the special conditions were not reasonably related to the defendant’s conviction (failing to register), his history, or the goals of sentencing. He also claims that the conditions are overbroad and impose a greater deprivation of liberty than is reasonably necessary.

II. Discussion

“We review conditions of supervised release for abuse of discretion.” United States v. Del Valle-Cruz, 785 F.3d 48, 58 (1st Cir. 2015). “The court exceeds its discretion when it fails to consider a significant factor in its decisional calculus, if it relies on an improper factor in computing that calculus, or if it considers all of the appropriate factors but makes a serious mistake in weighing such factors.” Id. (quoting Colon-Cabrera v. Esso Standard Oil Co., 723 F.3d 82, 88 (1st Cir. 2013)). To evaluate the conditions of supervised re lease, we apply 18 U.S.C. § 3583(d) and U.S.S.G § 5D1.3(b), which together' require that the conditions “involve[] no greater deprivation of liberty than is - reasonably necessary” to achieve the goals of the sentence, 18 U.S.C. § 3583(d)(2), and that the conditions be “ ‘reasonably related’ both to thesé goals and to the ‘nature and circumstances of the offense and the history and characteristics of the defendant,’ ” United States v. Perazza-Mercado, 553 F.3d 65, 69 (1st Cir. 2009) (quoting 18 U.S.C. § 3583(d)(1) and § 3553(a)(1)). The district court is required to set forth a “reasoned and case-specific explanation” for the conditions it imposes. Id. at 75 (quoting United States v. Gilman, 478 F.3d 440, 446 (1st Cir. 2007)).

First, the defendant argues that because his conviction for child pornography occurred nine years prior to the SOR-NA violation, and because he has not been convicted' of a sex-related offense in the intervening years, the district court had insufficient justification to impose conditions related to the child pornography conviction.

In two recent cases, we upheld nearly identical conditions in similar circumstances. United States v. Pabon, 819 F.3d 26 (1st Cir.), cert. denied, — U.S. -, 137 S.Ct. 345, 196 L.Ed.2d 269 (2016); United States v. Mercado, 777 F.3d 532 (1st Cir. 2015). In Mercado, even though the underlying sex offense “occurred some ten years prior to sentencing” for the SORNA violation, “the defendant’s persistent criminal involvement over the intervening ' years [made] his earlier offense highly relevant.” 777 F.3d at 538. We also recognized that the SORNA violation itself is “a type of lapse that has been credibly linked to an increased risk of recidivism.” Id. at 539. And we explained that it was important that the conditions imposed by the district court did not “comprise ah outright ban on the defendant’s ability to associate (or even live) with his minor children.” Id. Instead, the conditions required visits with his own children to be pre-approved by the probation officer and to take place in the presence of an adult familiar with his criminal history. Id.

In Pabon, the sex offense conviction occurred only three years prior to the SOR-NA conviction, but we explained that “subsequent criminal conduct, whether or not of a sexual nature, indicates an enhanced risk of recidivism.” Pabon, 819 F.3d at 29, 31. Further, “associational conditions maybe proper where the defendant has recently committed a sex offense against a minor, or where the intervening time between a prior sex offense and the present conviction is marked by substantial criminal activity, or where the defendant’s conduct otherwise indicates an enhanced risk to minors.” Id. at 31 (citations omitted). This is particularly true when the associational conditions “do not place an outright ban on association with minors, but only curtail association, such as by requiring pre-approval by the probation officer or another authority.” Id at 31-32. We also found it relevant to the reasonableness of the condition that, like here, there was not an outright ban on the defendant’s ability to associate with his own children. Id. at 34.

Mercado and Pabon are consistent with prior caselaw., See, e.g., United States v. Morales-Cruz, 712 F.3d 71, 73-75 (1st Cir. 2013) (upholding sex offender-related conditions of supervised release where underlying sex offense occurred 16 years prior, as defendant had multiple intervening convictions, including acts of violence against women, and his “record shows a pattern of failure to comply with court orders and conditions of probation imposed for his crimes”); United States v. Sebastian, 612 F.3d 47, 49, 51 (1st Cir. 2010) (upholding sex offender-related conditions of release on drug conviction where defendant was convicted of sexual assault eight years pri- or and “multiple convictions for drug offenses” indicated defendant had trouble obeying court orders and thus was likely to reoffend).

In this case, although the defendant’s 2006 child pornography conviction occurred 10 years ago, he has been convicted of three more crimes in the intervening years. Further, the defendant was incarcerated for the first five years after his 2006 conviction, which means that he has committed three crimes in the five years that he has been free. As Mercado and the other cases indicate, a 10-year-old sex crime conviction is not so old that it was unreasonable for the district court to consider it. Combined with the defendant’s extensive criminal history both before and after that conviction, which indicates that he has difficulty obeying court orders and could have been considered by the district court as highly likely to reoffend, the district court did not abuse its discretion in imposing the sex offender-related conditions. The conditions also do not impose too great an infringement on his associational rights, as they are less stringent than those approved in Mercado and Pa-bon, where the conditions did not contain exceptions for the defendants’ own children. Mercado, 777 F.3d at 535; Pabon, 819 F.3d at 29.

The defendant relies heavily on Del Valle-Cruz, which vacated conditions of release similar to those at issue here, including sex offender treatment and a prohibition on interaction with minors. 785 F.3d at 64. The present case is distinguishable from Del Valle-Cruz in several ways, however. In Del Valle-Cruz, the underlying sex offense occurred 15 years prior to the SORNA violation, and although the defendant had been convicted of a few registry violations and a domestic battery in the years immediately after the sex offense, he had subsequently turned his life around and had no convictions (aside from the failure to register) for more than nine years. Id. at 52—53, 60-61 (distinguishing Mercado, where defendant had an extensive criminal history). In contrast, in this case, the defendant’s criminal activities are numerous and show no sign of cessation. Furthermore, his sex offense is considerably more recent. Additionally, Del Valle-Cruz emphasized that the district court had provided no explanation or justification whatsoever for imposing the conditions, id. at 56-58, unlike here, where the district court did provide some explanation. Finally; the conditions in Del Valle-Cruz implicated a fundamental constitutional liberty interest, id. at 62 (condition prohibited all contact with minors, including defendant’s own son), in a way not at issue in this case, where the district court included an exception for the defendant’s own child and others with permission.

Next, the defendant argues that the district court failed to provide a sufficient explanation to support the conditions it imposed. When the defendant objected to the conditions of supervised release, the district court responded: “to all of those I say the information contained in paragraph 51 of the presentence report [is] sufficient to support the Court’s making those orders.” Paragraph 51 explains the details of the 2006 child pornography conviction. In addition, when the defendant objected to the condition that prohibits residing with children, the district court responded, “[i]t says without prior authorization.”

The defendant claims that the reference to paragraph 51 is “too tenuous a rationale” to support the imposition of the conditions, but we have previously upheld similar explanations. See Mercado, 777 F.3d at 535 (district court’s rationale was that probation office had discretion to order sex offender treatment; such treatment is “fairly standard in sex offender cases;” and probation office could review living and employment situations to mitigate risk); cf. Del Valle-Cruz, 785 F.3d at 62 (reversing where “district court provided us no clue as to its reasoning” (emphasis added)). In this instance, we can infer from the district court’s reference to paragraph 51 that it was concerned about the serious nature' of the underlying sex offense, and that this prior offense, when combined with the defendant’s criminal history, made him more likely to reoffend. In addition, the district court pointed out that the probation office could make exceptions to some of the conditions as needed.

The defendant also argues that the terms of special conditions 8, 10, and 11, each of which allow the probation officer to approve specific exceptions to those conditions, are not enough to salvage conditions that are otherwise impermissible. In its brief, the United States responds as though the defendant was making an un-preserved delegation claim, but the defendant conceded at oral argument that the argument is not about delegation. Rather, his point is that the conditions themselves hinder the parent-child relationship, and the ability to petition the probation office for an exception- is not sufficient to justify leaving the conditions in place. As. discussed above, however, these conditions are permissible and virtually identical to conditions in other cases that we have upheld. See Pabon, 819 F.3d at 29; Mercado, 777 F.3d at 535. Furthermore, giving the probation officer some authority to make exceptions as warranted is generally seen as a benefit of such orders in that it allows for flexibility and permits personal circumstances to be dealt with as they arise. See Pabon, 819 F,3d at 31-32 (citing Mercado, 777 F.3d at 539; United States v. Santiago, 769 F.3d 1, 6 (1st Cir. 2014); and United States v. Smith, 436 F.3d 307, 312 (1st Cir. 2006)). Should the defendant object to a decision of the probation officer, he has the option of seeking redress with the district court pursuant to 18 U.S.C. § 3583(e)(2). See Mercado, 777 F.3d at 539.

Additionally, the defendant claims that the limitations on interacting with minors, loitering where children congregate, working or volunteering with minors, and residing with children (except his own) significantly impede his freedom to associate with his family. At the time of his arrest, the defendant was living as a family with his fiancée, their minor child, and his fian-cée’s child, who is.the half-sibling of the defendant’s child and whom the defendant claims to be raising as his own. The defendant argues that the conditions fail to take into account his relationship with his flan-cée’s child, and also significantly limit the parenting activities in which he can engage, including taking the children to and from school and participating in events like birthday parties and after-school activities.

As an initial matter, we note that there is a discrepancy between.the written and oral -versions of condition 11. At sentencing, the district court announced that the defendant shall “not reside with anyone under the age of 18, with the exception of your own children, unless approved in advance -by the probation office.” The written condition omits the “own children” exception. As a general rule, “where the conditions imposed orally conflict in a material way with the conditions that, ended up in the judgment, the oral conditions control.” United States v. Fey, 834 F.3d 1, 6 n.5 (1st Cir. 2016) (quoting United States v. Santiago, 769 F.3d 1, 10 (1st Cir. 2014)). Therefore, we assume that the district court intended to include the exception. Given the fact that the order could benefit from further clarification, however, we will remand to the district court with instructions to enter a corrected judgment that reflects the exception to condition 11 that allows the defendant to reside with his own child.

The defendant makes an argument that, because he lives in a home with his fiancée and two children, and is raising the fian-cée’s child as his own, the soon-to-be stepchild should be treated the same as the defendant’s biological child for purposes of the release conditions. If that is true, it may be that the district court intended such a result when specifying that the defendant could associate and reside'with his “own” children, but the order is not clear on that point. Therefore, on remand, the district court should clarify whether the fiancée’s child is included in the exception to the general conditions.

Finally, we note that the restrictions on interaction with minors are not to be construed so strictly as to prohibit any manner of contact with other children. “[Ajssociational restrictions are usually read to exclude incidental encounters.” Pabon, 819 F.3d at 35. Otherwise, such a prohibition could become tantamount to “house arrest.” Id. In Pabon, we explained that we would read a no-contact provision to cover only intentional conduct. Id. Due to the defendant’s concerns, we instruct the district court, in revising its order, to explain the limitations of the order and to elucidate the kinds of incidental contact that are permitted. For example, if the defendant were to drop his child off at a birthday party, pausing only to check in with the adult in charge and not speaking to any children, such an activity, without more, likely should not be read to violate the conditions of his release. Similarly, it may be that the district court did not inténd to limit contact with children other than his own in situations where the children are in the presence of or being supervised by other adults.

Ultimately, the conditions, even as modified, will limit the defendant’s ability to participate in the full range of activities in which his children may engage, As discussed above, however, those conditions are not inherently unreasonable, and are not impermissible given the defendant’s 2006 child pornography conviction, his lengthy criminal history, and his recent failure to register as a sex offender as required by law. Furthermore, many of the conditions allow the defendant to obtain permission from the probation office on an as-needed basis.

III. Conclusion

For the reasons stated above, the conditions of supervised release are affirmed, except that those conditions shall, on remand, be corrected and clarified consistent with this opinion. When so corrected and clarified, the district court shall enter an amended judgment and commitment order.

      . As discussed below, the written judgment omits the "own children” exception, but the oral decision includes dé "own children” exception.

      . In a Rule 28(j) letter, see Fed. R. App. P. 28(j), the defendant additionally cites to United States v. Fey, 834 F.3d 1 (1st Cir. 2016). In that case, the defendant had been convicted of the underlying sex offense in 1999, and since that time, his only crimes were failure to register and violation of a probation condition prohibiting him from residing with minors. Id. at 4. Furthermore, the conditions prohibited him from having contact with any children, including family members. Id. at 5. While the court reversed the associational conditions, it nevertheless upheld an employment condition. Id, at 6. Considering that the defendant’s criminal history is more extensive than that in Fey, and that his conditions contain an exception for his own child, Fey does not command a reversal here.

      . At the beginning of oral argument, when counsel for the defendant was discussing the conditions, she described this condition as "presumably allowing] him to have unsupervised contact with his child.” (emphasis added). Later, counsel represented that the condition was that he could have no contact with children under 18 without supervision, omitting the exception for his own child. Although there was a discrepancy between the written and oral judgment, we assume counsel was aware of this discrepancy and understood that the oral judgment controls. Fey, 834 F.3d at 6 n.5. Counsel may have intended only to use shorthand, but we nevertheless remind her that the duty of candor requires a certain amount of clarity, even if it comes at the expense of brevity.