NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAY 8 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

In re: SPECIALTY EQUIPMENT No. 19-72623

MARKET ASSOCIATION,

______________________________

SPECIALTY EQUIPMENT MARKET

ASSOCIATION, ORDER*

Petitioner,

v.

ELAINE L. CHAO, Secretary of Transportation; U.S. DEPARTMENT OF

TRANSPORTATION; NATIONAL

HIGHWAY TRAFFIC SAFETY

ADMINISTRATION; JAMES OWENS,

Acting Administrator of NHTSA,

Respondents.

Petition for Writ of Mandamus

Submitted May 6, 2020** Pasadena, California

Before: M. SMITH, OWENS, and BRESS, Circuit Judges.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Section 24405 of the Fixing America’s Surface Transportation (FAST) Act

permits low-volume vehicle manufacturers to produce and sell a limited number of

replica vintage automobiles that are exempt from certain motor safety standards.

Pub. L. No. 114-94, § 24405, 129 Stat. 1312, 1721–25 (2015). Congress also

provided that the Department of Transportation had to issue any regulations

implementing the FAST Act by December 4, 2016. See Pub. L. No. 114-94,

§ 24405(c), 129 Stat. at 1725. This responsibility has been delegated to the National

Highway Traffic Safety Administration (NHTSA). See 49 C.F.R. § 1.95.

NHTSA did not issue any implementing regulations by December 4, 2016.

This prompted petitioner Specialty Equipment Market Association (SEMA), a trade

association, to petition this Court for a writ of mandamus directing respondents to

propose regulations implementing Section 24405, or to determine that such

regulations are unnecessary. On November 22, 2019, this Court ordered a response

to SEMA’s petition. On December 20, 2019, respondents answered that a notice of

proposed rulemaking had issued on December 12, 2019. A notice of proposed

rulemaking has also now been published in the Federal Register. See Replica Motor

Vehicles, 85 Fed. Reg. 792 (proposed Jan. 7, 2020) (to be codified at 49 C.F.R. pts.

565–67, 586).

“The writ of mandamus is a drastic and extraordinary remedy,” and SEMA

“bears the burden of establishing that [its] right to issuance of the writ is clear and

2 indisputable.” In re Bozic, 888 F.3d 1048, 1052 (9th Cir. 2018) (quotations omitted).

Because SEMA’s requested rulemaking is now underway, SEMA has not

established a “clear and indisputable” right to mandamus relief. Id. (quotations

omitted). Although SEMA requested that we order a fixed timetable for the

rulemaking, require status reports, and retain jurisdiction, we decline to do so in light

of the circumstances here. Respondents are encouraged to complete the rulemaking

process in a reasonably timely manner in view of the delay that has already occurred.

Accordingly, we DENY the instant petition for a writ of mandamus without

prejudice to SEMA seeking further relief should the circumstances so warrant.

IT IS SO ORDERED.

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