“As Necessary” in the Federal Railroad Safety Act Confers Broad Discretion: Eleventh Circuit Upholds FRA’s Two-Person Crew Default with Risk-Based One-Person Pathways

Introduction

This consolidated set of petitions challenged the Federal Railroad Administration’s 2024 “Crew Size Rule,” a safety regulation requiring, by default, at least two crewmembers onboard most freight trains unless a railroad qualifies for enumerated exemptions or secures permission for one-person operations through specified pathways. Multiple railroads and trade associations (collectively, the “Petitioners” or “Railroads”) sought review under the Administrative Procedure Act (“APA”), arguing the FRA exceeded its statutory authority under the Federal Railroad Safety Act (“FRSA”) and acted arbitrarily and capriciously. The FRA, the Administrator, and the U.S. Department of Transportation defended the rule; SMART-TD intervened as a respondent.

The central legal issues were (1) whether FRSA’s instruction that the Secretary “as necessary” “shall prescribe regulations…for every area of railroad safety,” 49 U.S.C. § 20103(a), imposes a stringent evidentiary threshold that limits the FRA’s power; (2) whether the FRA’s explanation and record support were arbitrary and capricious given the agency’s 2019 withdrawal of a similar rulemaking; (3) whether the FRA unlawfully ignored labor costs; (4) whether the rule conflicts with the Rail Safety Improvement Act’s risk-reduction program; (5) whether missing a 12-month internal timing directive invalidates the rule; and (6) whether certain exemptions and technical requirements (notably “legacy” status and alerters) were unlawful.

Summary of the Opinion

The Eleventh Circuit denied all petitions. It held:

  • Statutory authority: FRSA’s “as necessary” language is a discretionary grant in a broad, general safety rulemaking provision—not an “essential-to-safety” evidentiary bar. The proper inquiry is whether the rule is a reasonable exercise of delegated authority.
  • Reasoned decisionmaking: The FRA reasonably explained why the Crew Size Rule promotes safety and may act prophylactically without “gold-standard quantitative data.”
  • Record and change in position: The FRA did not trigger (and in any event satisfied) change-in-position scrutiny; the 2019 Withdrawal Order had been vacated in Transp. Div. of the Int'l Ass'n of Sheet Metal, Air, Rail, & Transp. Workers v. Fed. R.R. Admin. (SMART-TD I).
  • Costs: Michigan v. EPA was distinguished; the Petitioners failed to show the FRA ignored a “substantial” cost category because their “foregone savings” theory depended on unsupported assumptions that one-person approvals would be functionally unattainable.
  • No conflict with risk-reduction program: 49 U.S.C. § 20156 contemplates overlap with federal regulations and does not impliedly displace FRSA rulemaking.
  • Missed 12-month deadline: Missing the 12-month directive does not void the rule absent a specified consequence; the remedy for delay would have been a suit to compel action, not vacatur.
  • Short-line objections: Several were forfeited; the “hazmat legacy” distinction and alerter requirement were upheld as reasonable line-drawing and adequately explained.

Judge Branch dissented, characterizing the rule as arbitrary and capricious for (i) insufficient explanation for changing course from 2019 and (ii) a fatally flawed cost analysis that did not account for labor costs.

Analysis

Precedents Cited

1) APA review: deference, “zone of reasonableness,” and evidentiary flexibility

  • FCC v. Prometheus Radio Project — The court relied on this as the lodestar for arbitrary-and-capricious review: courts may not substitute policy judgments, and the question is whether the agency reasonably considered relevant issues and reasonably explained its decision. It also used Prometheus Radio to reject any claim that agencies must commission new empirical studies before regulating.
  • City of North Mia. v. Fed. Aviation Admin. and Miccosukee Tribe of Indians of Fla. v. United States — Cited to emphasize that arbitrary-and-capricious review is “exceedingly deferential.”
  • Citadel Sec. LLC v. SEC and Nasdaq Stock Mkt. LLC v. SEC — Used to underscore that agencies may act without “gold-standard quantitative data,” and that comments and qualitative evidence may support rulemaking.
  • Sunshine State Bank v. Fed. Deposit Ins. Corp. — Supported deference to predictive judgments and technical expertise.
  • Miami-Dade County v. EPA and Ethyl Corp. v. EPA — Provided the “precautionary” principle: courts should not demand step-by-step causal proof where regulation is preventive in nature.
  • Stilwell v. Off. of Thrift Supervision — Quoted for the prophylactic-regulation maxim: “An agency need not suffer the flood before building the levee.”

2) Scope of statutory authority: interpreting “as necessary” and general rulemaking grants

  • Ins. Mktg. Coal. Ltd. v. FCC — Distinguished de novo review of statutory authority from deferential APA review; the court treated “exceeds statutory authority” as a legal question.
  • Oceanair of Fla., Inc. v. U.S. Dep't of Transp. — Invoked for the baseline principle that agencies have only the authority Congress grants.
  • United States v. Florida and Mourning v. Family Publ'ns Serv., Inc. — Key authority for construing “regulate as necessary” clauses: a regulation is valid if “reasonably related” to the statute’s purposes.
  • U.S. Pipe & Foundry Co. v. Webb and Thorpe v. Hous. Auth. of City of Durham — Reinforced the same “reasonably related” construction of “necessary” language.
  • Republic of Sudan v. Harrison, Home Depot U.S.A., Inc. v. Jackson, and Davis v. Mich. Dept. of Treasury — Used for contextual, whole-text statutory interpretation rejecting “necessary” in isolation.
  • Sierra Club v. Jackson — A particularly important analog: “as necessary” language was read to leave implementation to agency discretion, supporting the Eleventh Circuit’s reading of 49 U.S.C. § 20103(a).
  • Drummond v. S. Co. Servs., Inc. and Georgia v. President of the U.S. — Cited for using statutory purpose statements to choose among permissible textual readings.
  • Transp. Div. of Int'l Ass'n of Sheet Metal, Air, Rail & Transp. Workers v. Fed. R.R. Admin. (SMART-TD III) — Quoted for describing FRA’s “broad mandate” to enhance safety.
  • United States v. Rodriguez — An old Fifth Circuit example treating “as necessary” as conferring discretion.
  • Indus. Union Dep't, AFL-CIO v. Am. Petroleum Inst. and Nat'l Mining Ass'n v. United Steel Workers — The court rejected Petitioners’ reliance on the “Benzene case,” distinguishing it based on OSHA’s statutory structure and concessions absent here.
  • Alabama Association of Realtors v. Department of Health and Human Services — Used against Petitioners, as an example of assessing how closely a measure relates to statutory purpose rather than reading “necessary” as an evidentiary straitjacket.

3) Change in position, vacatur, and reliance

  • Food & Drug Admin. v. Wages & White Lion Invs., LLC and FCC v. Fox Television Stations, Inc. — Provided the framework for change-in-position review (awareness + good reasons; sometimes more detailed justification).
  • United States v. Sigma Int'l, Inc. — Used to support treating vacated decisions as having no legal effect.
  • Action on Smoking & Health v. C.A.B. — Cited as persuasive authority that vacatur reinstates the prior regime.
  • Smiley v. Citibank (S.D.), N.A. — Used to support the view that absent an extant policy, there may be no “official agency position” change triggering heightened scrutiny.

4) Comment response and issue exhaustion

  • Perez v. Mortg. Bankers Ass'n — Cited for the duty to consider and respond to significant comments, which Petitioners invoked via the NTSB recommendation argument.
  • Advocs. for Highway & Auto Safety v. Fed. Motor Carrier Safety Admin. — Used to hold certain short-line arguments forfeited for failure to raise them in comments.
  • LaCourse v. PAE Worldwide Inc. — Cited for waiver/forfeiture principles (arguments raised too late).

5) Cost consideration

  • Michigan v. EPA — The court distinguished it because the FRA’s enabling text lacks “appropriate” and because Michigan does not require formal cost-benefit analysis in any event.
  • Nat'l Parks Conservation Ass'n v. U.S. Dep't of the Interior — Invoked for the presumption of regularity against Petitioners’ speculation that approvals would be denied for political reasons.

6) Deadline remedies

  • Transp. Div. of Int'l Ass'n of Sheet Metal, Air, Rail & Transp. Workers v. Fed. R.R. Admin. (SMART-TD II) and SMART-TD III — Persuasive authority rejecting vacatur as a remedy for FRA missing its 12-month timeline.
  • Barnhart v. Peabody Coal Company and United States v. James Daniel Good Real Prop. — Controlling principle: absent a specified consequence, courts ordinarily do not impose vacatur for missed statutory deadlines.
  • McIntosh v. United States — Extended Barnhart reasoning to a timing rule that lacked a specified consequence, supporting “spur, not bar” interpretation.
  • United States ex rel. Accardi v. Shaughnessy — Acknowledged for the general proposition that agencies must follow their regulations, but not used to convert the time limit into a jurisdictional bar.

Legal Reasoning

1) The FRSA “as necessary” holding: discretion, not an evidentiary gatekeeper

The court’s most consequential interpretive move is its reading of “as necessary” in 49 U.S.C. § 20103(a). Petitioners sought to convert “as necessary” into a substantive limitation: the FRA could regulate only upon proof that a rule is “essential” to safety. The court rejected that framing on three complementary rationales:

  1. General rulemaking grant: Section 20103(a) is a broad authorization “for every area of railroad safety.” Within that genre, “necessary” commonly signals discretion and fit-to-purpose, not a heightened evidentiary burden. The court grounded this in its “reasonably related” standard from Mourning v. Family Publ'ns Serv., Inc. (as applied in United States v. Florida and U.S. Pipe & Foundry Co. v. Webb).
  2. Whole-text reading: Without “as necessary,” the statute could read like an untempered command to regulate “every area” in all circumstances. The phrase therefore functions to temper and allocate discretion—consistent with Republic of Sudan v. Harrison and Home Depot U.S.A., Inc. v. Jackson.
  3. Distinguishing Petitioners’ Supreme Court authorities: The court explained why Indus. Union Dep't, AFL-CIO v. Am. Petroleum Inst. and Alabama Association of Realtors v. Department of Health and Human Services do not convert “necessary” into a strict proof requirement here.

This portion of the opinion effectively reaffirms that, in the Eleventh Circuit, FRSA safety rulemaking is judged by a reasonableness/fit-to-statutory-purpose standard rather than an “essentiality” threshold—and that the APA, not an implied evidentiary bar, is the principal constraint.

2) Prophylactic regulation and “no gold-standard data”

The court treated rail safety regulation as paradigmatically precautionary. It accepted that catastrophic accidents may be rare but high-consequence, and held the FRA need not “sit and wait” for statistical certainty. The opinion’s reliance on Citadel Sec. LLC v. SEC, FCC v. Prometheus Radio Project, Miami-Dade County v. EPA, Ethyl Corp. v. EPA, and Stilwell v. Off. of Thrift Supervision underlines a doctrinal point: when agencies confront risk under uncertainty, qualitative evidence (including credible comments and expert judgment) can support a preventive rule, so long as the explanation is reasoned.

The court also highlighted the rule’s structure as part of its reasonableness: a two-person default paired with pathways to one-person operations if “as safe or safer” (with notice options for smaller railroads and a risk-assessment/special-approval process for larger or hazmat operations). That architecture allowed the court to characterize the rule as measured rather than absolutist.

3) The 2019 Withdrawal Order, vacatur, and change-in-position scrutiny

Petitioners attempted to frame the rule as an unreasoned reversal. The court answered in two steps:

  • No “existing policy”: Because SMART-TD I vacated the 2019 Withdrawal Order, the court reasoned there was no extant policy to reverse. It analogized to the effect of vacatur in judicial decisions (United States v. Sigma Int'l, Inc.) and persuasive administrative vacatur practice (Action on Smoking & Health v. C.A.B.).
  • Even if a change, it was explained: The FRA cited reassessment after the Ninth Circuit’s critique and “troubling trends” (human-factor accident rates, longer trains, PTC uncertainties) and provided safety rationales supported by research and extensive comments. Under FCC v. Fox Television Stations, Inc., the court required “good reasons,” not proof the new policy is “better” than the old.

The dissent took the opposite view, arguing the agency contradicted its own earlier factual assessments without new evidence and failed to connect cited trends to crew size. The majority’s response—implicitly—was that the FRA made a predictive, preventive judgment supported by research and comments and that the APA does not demand the causal precision the dissent sought.

4) Comment response: the NTSB data-collection recommendation

Petitioners argued the FRA had to respond specifically to an NTSB recommendation to modify accident reporting fields. The court rejected this as both an overreading of what the NTSB recommended and an overstatement of the agency’s response obligations. It emphasized that agencies need not “name-check” every referenced document so long as they address the substance of significant comments (here, the asserted lack of evidence), and it found the FRA did so.

5) Costs: “foregone savings” and Michigan v. EPA

The majority distinguished Michigan v. EPA on textual grounds (the FRA’s statute lacks “appropriate,” and Congress removed “appropriate” from the earlier version) and on remedial flexibility (even under Michigan, the agency chooses how to account for costs). On the merits, the court treated Petitioners’ principal “labor cost” theory as speculative: it depended on the assumption that the “special approval” process would be a de facto ban on one-person operations, which Petitioners did not substantiate. The dissent, by contrast, viewed labor cost omissions as a “serious flaw” once the FRA chose to conduct a cost analysis.

6) No implied repeal by the risk-reduction program

Petitioners argued that 49 U.S.C. § 20156’s “risk reduction program” displaced the FRA’s ability to regulate crew size. The court relied on anti-implied-repeal instincts (Am. Hosp. Ass'n v. NLRB) and on § 20156(c)’s express expectation that risk-reduction plans will cover both regulated and unregulated subjects, making the claimed conflict textually implausible.

7) Timing: the 12-month directive and remedies

The court adopted the approach of SMART-TD II and SMART-TD III, anchored in Barnhart v. Peabody Coal Company: if a statute (or implementing procedural rule) sets a deadline but specifies no consequence, courts ordinarily do not invalidate late action. The proper response to delay is an action to compel agency action unlawfully withheld or unreasonably delayed, not vacatur after completion.

Impact

1) A durable Eleventh Circuit rule on FRSA “as necessary”

The opinion supplies a clear circuit-level construction of 49 U.S.C. § 20103(a): “as necessary” principally confers discretion and frames reasonableness review; it does not impose an “essential” evidentiary threshold that would disable precautionary safety regulation absent statistical proof. This will matter beyond crew size—any FRA safety rule challenged as “not necessary” now faces an uphill climb if it is plausibly “reasonably related” to railroad safety and accompanied by a reasoned explanation.

2) Reinforcing prophylactic safety regulation under uncertainty

By validating rulemaking grounded in a blend of safety research, predictive judgment, and extensive public comment, the decision lowers the litigation value of “no conclusive data” arguments in high-consequence safety contexts—so long as the agency explains why it is acting preventively and how the chosen mechanism addresses identified risks.

3) Procedural attacks: vacatur, comments, and deadlines

Three procedural holdings are likely to echo:

  • Vacated prior agency actions may not qualify as “existing policy” for heightened reversal scrutiny.
  • Agencies need not respond to every referenced document by name if they address the core contention.
  • Missing non-jurisdictional rulemaking deadlines typically does not void a final rule absent a specified consequence.

4) Practical regulatory consequences

Substantively, the opinion secures the FRA’s two-person default framework with “legacy” continuity and a structured path to one-person operations, especially through the “as safe or safer” special-approval regime for Class I and hazardous materials. The court’s acceptance of FRA’s line-drawing and monitoring approach may encourage agencies to pair baseline safety defaults with waiver/approval mechanisms—an approach often viewed as more defensible under arbitrary-and-capricious review.

Complex Concepts Simplified

  • “Arbitrary and capricious” (APA): A court does not decide whether a rule is the best policy; it asks whether the agency considered the important issues and explained its choice in a way that makes sense.
  • General rulemaking authority: Broad statutory language authorizing an agency to make rules in an area (here, “every area of railroad safety”). Courts usually uphold rules that reasonably fit the statute’s purpose.
  • “As necessary”: In this opinion, it is not treated as “only when proven essential,” but as giving the FRA discretion to decide when safety regulation is warranted—subject to APA reasonableness review.
  • “Logical outgrowth”: A rule must be a foreseeable outgrowth of what the agency proposed, so commenters had fair notice. This concept mattered historically because SMART-TD I vacated the 2019 Withdrawal Order as effectively creating a one-person mandate not fairly foreshadowed.
  • PTC (Positive Train Control): A safety technology intended to prevent certain collisions and derailments, but not a full substitute for all conductor functions; the FRA cited outages/malfunctions as reasons for caution.
  • “Legacy” one-person operations: Existing one-person operations (meeting timing and conditions) can continue under a notice-based pathway; others must seek “special approval.”
  • “Alerter”: A device that monitors engineer activity and triggers alarms and ultimately braking if the engineer becomes non-responsive; the rule requires it for one-person operations.
  • Special approval and “as safe or safer”: A railroad may operate with one person if it persuades the FRA—after a risk assessment and public comment—that the proposal is at least as safe as two-person operations.

Conclusion

The Eleventh Circuit’s decision is a significant administrative-law-and-safety-regulation precedent in three ways. First, it construes FRSA’s “as necessary” language as a discretionary feature of broad rulemaking authority—not an evidentiary lock that requires statistical proof of necessity. Second, it reaffirms that precautionary safety regulation may rest on predictive judgment, qualitative safety research, and public comments, provided the agency explains itself within the APA’s “zone of reasonableness.” Third, it curbs procedural strategies to invalidate rules based on missed internal deadlines or granular comment-response demands.

The dissent highlights litigation pressure points that will recur—especially the rigor demanded when agencies reverse course and how to treat labor-cost impacts when agencies prepare an impact analysis. But the controlling opinion firmly positions the FRA to regulate emerging operational shifts (like crew reduction amid automation) through baseline safety defaults and structured approval mechanisms, with judicial review focused on reasoned explanation rather than empirical certainty.