As a rule that requires a RFA, RAFA or JIS, this rule will be initially reviewed in the calendar year 2021,which is the 4th or 5th year after the year in which this rule is being adopted. This review period, justification for proposing same, and invitation for public comment thereon, were contained in a RFA, RAFA or JIS:

An assessment of public comment on the 4 or 5-year initial review period is not attached because no comments were received on the issue.

The New York Association of Convenience Stores urged the Commission to add “actions by state and local governments” to the list of enumerated unforeseen circumstances that might be grounds for an affirmative defense by a sales agent. The Association explained that government action, such as allowing nearby gaming facilities, road construction and increased taxes on items offered at convenience stores might drive patronage down in ways in which a store owner might not be able to mitigate. The Association also urged removing the requirement for a sales agent to take reasonable steps to mitigate.

The Commission believes that the proposed language, which includes “other events or circumstances” among the enumerated factors beyond the sales agent’s control provides sufficiently broad language to cover exceptional circumstances and allow a sales agent challenging a suspension or revocation on such grounds the ability to state the sales agent’s case. The Commission believes that it would be inappropriate to eliminate the duty to mitigate. The scope of a duty to mitigate will vary with the fact-specific circumstances, but eliminating a mitigation requirement would allow a sales agent to be not diligent in using best sales efforts in the wake of an unforeseen circumstance (such as a severe weather event), contrary to the policy goals of maintaining a robust sales culture.