“As Necessary” Means Discretion: FRA May Adopt Precautionary Two-Person Crew Rules Without Statistical Proof, and Missing the 12‑Month Rulemaking Deadline Does Not Void the Rule

Case: Association of American Railroads v. Federal Railroad Administration (consolidated petitions)
Court: U.S. Court of Appeals for the Eleventh Circuit
Date: 2026-08-11

1. Introduction

This consolidated challenge arose after the Federal Railroad Administration (“FRA”) finalized a 2024 regulation commonly called the “Crew Size Rule,” requiring (as a default) at least two crewmembers onboard most freight trains unless a one-person operation is shown to be “as safe or safer” than the two-person baseline. Multiple railroads and trade associations petitioned for review, contending the rule exceeded statutory authority and was arbitrary and capricious under the Administrative Procedure Act (“APA”). The Transportation Division of the International Association of Sheet Metal, Air, Rail and Transportation Workers (“SMART-TD”) intervened to defend the rule.

The case sits against a long-running federal debate: after years of technological change and shrinking train crews, the FRA oscillated—proposing a two-person minimum in 2016, withdrawing that proposal in 2019 (with an attempted nationwide preemption of state crew-size laws), then returning with a renewed proposal in 2022 and the final rule in 2024. The Ninth Circuit’s vacatur of the 2019 Withdrawal Order in Transp. Div. of the Int'l Ass'n of Sheet Metal, Air, Rail, & Transp. Workers v. Fed. R.R. Admin. (SMART-TD I) framed much of the background.

Key issues included: (i) the meaning of the FRA’s authority to regulate “as necessary” for railroad safety under 49 U.S.C. § 20103(a); (ii) the evidentiary burden for safety rulemaking (must the FRA have “conclusive data”?); (iii) whether the FRA adequately addressed cost and comments; (iv) alleged conflict with the Rail Safety Improvement Act of 2008’s risk-reduction program; and (v) whether exceeding a 12-month timing directive invalidates the rule.

2. Summary of the Opinion

The Eleventh Circuit denied all petitions for review and upheld the Crew Size Rule. The court held, in substance:

  • Statutory authority: The phrase “as necessary” in 49 U.S.C. § 20103(a) confers discretionary safety rulemaking authority; it is not an “essentiality” or heightened evidentiary threshold. A safety rule is valid so long as it is reasonably related to railroad safety.
  • APA reasonableness: The FRA reasonably explained the rule and could rely on qualitative evidence, predictive judgments, safety research, and public comments; the APA does not require “gold-standard quantitative data.”
  • Record and change-in-position claims: Petitioners’ “policy reversal” arguments failed; the 2019 Withdrawal Order had been vacated in SMART-TD I, and in any event the FRA reasonably explained why it regulated in 2024.
  • Cost considerations: Petitioners did not show the FRA unlawfully ignored “labor-cost savings,” and Michigan v. EPA did not compel the cost analysis petitioners demanded under this statute.
  • No conflict with risk-reduction program: The Crew Size Rule did not conflict with the Rail Safety Improvement Act’s “risk reduction program,” which contemplates overlap with federal regulations.
  • 12-month deadline: Missing the 12-month timing directive in 49 U.S.C. § 20103(b) (and related regulation) does not void the rule; the remedy for delay is typically an action to compel under 5 U.S.C. § 706(1), not vacatur, per Barnhart v. Peabody Coal Company and McIntosh v. United States.
  • Short-line challenges: Several short-line arguments were forfeited for not being raised during rulemaking; the hazardous materials (“hazmat legacy”) and alerter provisions were upheld as reasonable.

Judge Branch dissented, viewing the rule as arbitrary and capricious for inadequately explaining the shift from 2019 and for failing to account for labor costs in its cost-benefit analysis.

3. Analysis

3.1 Precedents Cited

A. Deferential APA review and the “zone of reasonableness”

  • FCC v. Prometheus Radio Project — Provided the controlling frame: courts may not substitute their policy judgment; the question is whether the agency “reasonably considered the relevant issues and reasonably explained the decision.” The court repeatedly returned to Prometheus Radio to justify deference to the FRA’s predictive safety judgments and to reject demands that the FRA commission new empirical studies.
  • City of North Mia. v. Fed. Aviation Admin. (quoting Miccosukee Tribe of Indians of Fla. v. United States) — Used to describe arbitrary-and-capricious review as “exceedingly deferential,” reinforcing that petitioners carried a heavy burden to show irrationality.
  • Biden v. Texas — Cited for the proposition that courts apply reasonableness review when an agency exercises discretion within its statutory framework, aligning the Crew Size Rule with mainstream administrative review doctrine.

B. Interpreting “as necessary” in general rulemaking grants

  • Mourning v. Family Publ'ns Serv., Inc. and Thorpe v. Hous. Auth. of City of Durham — The court adopted the classic test: when a statute directs regulation “as necessary,” a regulation is valid if “reasonably related to the purposes of the enabling legislation.”
  • United States v. Florida and U.S. Pipe & Foundry Co. v. Webb — Eleventh Circuit / binding Fifth Circuit authority applying the Mourning standard; used to defeat petitioners’ attempt to transform “as necessary” into an “essential” requirement.
  • Republic of Sudan v. Harrison, Home Depot U.S.A., Inc. v. Jackson — Invoked for contextual reading: statutory words are not read in isolation; “as necessary” tempers what would otherwise be an implausible mandate to regulate “every area” of railroad safety.
  • Sierra Club v. Jackson — Persuasive authority that “as necessary” language can mark discretionary judgment; used to buttress that “as necessary” does not impose a rigid evidentiary threshold.
  • United States v. Rodriguez — Binding Fifth Circuit support that “as necessary” “clearly contemplates” discretion.
  • Lesko v. United States — Cited to show Congress frequently delegates authority using “necessary” formulations.
  • Sister-circuit consensus examples (as cited): Sanchez ex rel. D.R.-S. v. United States, Susinno v. Work Out World Inc., United States v. McLeod, United States v. Bowman, A Cmty. Voice v. EPA, United States v. Solon — Used to reinforce that “necessary” language is commonly treated as discretionary, not as a strict proof requirement.

C. Distinguishing petitioners’ Supreme Court authorities

  • Indus. Union Dep't, AFL-CIO v. Am. Petroleum Inst. (“Benzene”) — Petitioners urged a “threshold finding” requirement. The court distinguished Benzene based on statutory context and the OSH Act’s features (including cost-benefit considerations and prioritization structure) not present here, relying on Nat'l Mining Ass'n v. United Steel Workers to explain why Benzene is limited.
  • Alabama Association of Realtors v. Department of Health and Human Services — Petitioners argued “as necessary” should be read narrowly. The court used Alabama Association of Realtors against petitioners: the Supreme Court focused on the closeness of fit between the regulation and statutory purpose, consistent with the “reasonably related” test, not on imposing an evidentiary “straitjacket.”

D. Evidence, qualitative inputs, and prophylactic regulation

  • Citadel Sec. LLC v. SEC (quoting Nasdaq Stock Mkt. LLC v. SEC) — Key support for rejecting the idea that agencies can act only on “gold-standard quantitative data”; agencies may rely on qualitative evidence and do not “need” empirical certainty for every judgment.
  • Prometheus Radio — Reinforced: no general duty to conduct or commission studies.
  • Sunshine State Bank v. Fed. Deposit Ins. Corp. — Used to justify deference to “informed prediction about the likely course of future events.”
  • Miami-Dade County v. EPA (quoting Ethyl Corp. v. EPA) — Supported the court’s “precautionary statute” approach: no need for “rigorous step-by-step proof of cause and effect” before regulating.
  • Stilwell v. Off. of Thrift Supervision — Quoted for the prophylactic principle: “An agency need not suffer the flood before building the levee.”

E. Change-in-position doctrine and the effect of vacatur

  • Food & Drug Admin. v. Wages & White Lion Invs., LLC and FCC v. Fox Television Stations, Inc. — Provided the two-step framework: (1) whether there is an existing policy change, and (2) whether the agency acknowledged and gave good reasons (and sometimes a more detailed justification).
  • United States v. Sigma Int'l, Inc. — A vacated decision has no legal effect; the court analogized this to the 2019 Withdrawal Order after SMART-TD I.
  • Action on Smoking & Health v. C.A.B. — Persuasive authority suggesting that vacatur can reinstate prior rules and deprive the vacated action of continuing legal status.
  • Smiley v. Citibank (S.D.), N.A. — Used to emphasize that not every agency shift triggers formal “policy change” treatment.
  • Encino Motorcars, LLC v. Navarro — Cited (via discussion of heightened explanation and reliance) to reject claims of serious reliance interests here.
  • LaCourse v. PAE Worldwide Inc. — Used to enforce forfeiture principles (arguments raised only on reply are too late).

F. Comments and the agency’s duty to respond

  • Perez v. Mortg. Bankers Ass'n — Agencies must consider and respond to significant comments; applied to reject petitioners’ claim that the FRA had to “name-check” every document (such as the NTSB recommendation) so long as it addressed the substance.
  • SMART-TD I — The court invoked the Ninth Circuit’s criticism of ignoring “anecdotal evidence” to support the FRA’s reliance on public comments as evidence.

G. Cost consideration doctrine

  • Michigan v. EPA — Petitioners invoked it to require cost accounting. The court distinguished it because the FRA’s statute lacks the “appropriate” language central to Michigan, and because Michigan allows agencies flexibility in how to account for costs.
  • Nat'l Parks Conservation Ass'n v. U.S. Dep't of the Interior — Used for the “presumption of regularity” when petitioners speculated that the special-approval process would be administered in bad faith.

H. Statutory “risk reduction program” and implied repeal skepticism

  • Am. Hosp. Ass'n v. NLRB — The court relied on the canon against lightly inferring that Congress curtailed a broad rulemaking authority without clear text.

I. Timing deadlines and remedies for delay

  • Barnhart v. Peabody Coal Company and United States v. James Daniel Good Real Prop. — Core rule: if a statute does not specify a consequence for missing a timing provision, courts do not invent vacatur as a sanction.
  • McIntosh v. United States — Reinforced that timing directives without specified consequences are generally “spur[s] to prompt action,” not jurisdictional bars.
  • SMART-TD II and SMART-TD III — D.C. Circuit decisions rejecting vacatur as the remedy for the FRA’s failure to complete rulemaking within the 12-month timeframe; the Eleventh Circuit adopted that reasoning.

J. Forfeiture of rulemaking objections

  • Advocs. for Highway & Auto Safety v. Fed. Motor Carrier Safety Admin. — Applied to hold certain “short line” objections forfeited because petitioners did not raise them during notice-and-comment.

K. Line-drawing deference

  • Mayo Found. for Med. Educ. & Rsch. v. United States — Invoked for the reality that rules often require drawing lines.
  • Nat'l Shooting Sports Found., Inc. v. Jones (quoting WorldCom, Inc. v. FCC; ExxonMobil Gas Mktg. Co. v. FERC) — Provided the standard that line-drawing is upheld unless “patently unreasonable.”

3.2 Legal Reasoning

A. The core holding on “as necessary”: discretion, not “essentiality”

The opinion’s most important doctrinal move is to reject petitioners’ attempt to convert “as necessary” (49 U.S.C. § 20103(a)) into a strict evidentiary gatekeeping requirement. The court reads the clause in context: without “as necessary,” the statute would resemble an implausible mandate to regulate “every area of railroad safety” not already covered. With the clause, Congress is understood to be granting the FRA discretion to determine when regulation is warranted to promote safety. This is the rule-of-law contribution: in the FRA’s safety statute, “as necessary” is a discretionary timing-and-subject-matter modifier, not a proof threshold that disables precautionary safety regulation absent statistical certainty.

B. Reasoned decisionmaking without quantitative certainty

After locating authority, the court turns to APA review and explains that the FRA may regulate under uncertainty. Relying on Citadel Sec. LLC v. SEC and FCC v. Prometheus Radio Project, the court emphasizes that agencies can act on qualitative evidence, studies that raise safety concerns, and public comment—particularly in a preventive safety regime. The court underscores the “prophylactic” nature of safety regulation with Miami-Dade County v. EPA and Stilwell v. Off. of Thrift Supervision: requiring accidents to accumulate to achieve statistical certainty would invert Congress’s safety-first design (reinforced by 49 U.S.C. § 103(c)).

C. The record: why the FRA could act in 2024 after not acting in 2019

The court rejects the “you said no in 2019, so you can’t say yes now” narrative through two routes:

  • No operative prior policy: Because the 2019 Withdrawal Order was vacated in SMART-TD I, it did not constitute an “existing policy” whose reversal triggers heightened change-in-position scrutiny.
  • Even assuming a change, reasons were given: The FRA cited reassessment of prior research and updated safety/operational trends (longer trains, rising human-factor accident rates, PTC reliability/learning curve). The court treats these as sufficient under deferential review and declines to demand a quantified causal demonstration linking each trend to crew size.

D. Comments and the NTSB recommendation: “respond to substance,” not “name-check everything”

Petitioners argued the FRA had to delay regulation until new data could be collected (citing an NTSB recommendation about accident reporting). The court’s response is administrative-law pragmatic: the NTSB recommendation did not instruct the FRA to refrain from regulating, and the cited comments largely repackaged a generalized “insufficient evidence” objection—an objection the FRA answered in substance. Under Perez v. Mortg. Bankers Ass'n, an agency must respond to significant comments, but the APA does not require a “gotcha” style of address-by-proper-noun for every referenced document.

E. Costs: rejecting “foregone savings” as a fatal omission

The opinion’s cost analysis is narrow: it rejects petitioners’ reliance on Michigan v. EPA, highlighting that the “appropriate” language in Michigan is absent here and that Congress removed “appropriate” from the FRA’s statutory formulation. It also treats the “labor savings foregone” theory as speculative because the rule includes pathways for one-person operations (especially via special approval) and because petitioners did not substantiate their claimed magnitude of costs on this record.

F. No statutory conflict with the Rail Safety Improvement Act risk-reduction program

Petitioners argued that requiring railroads to run a “risk reduction program” (49 U.S.C. § 20156) displaced FRA crew-size regulation. The court rejects this as an implied repeal/curtailment theory lacking textual support, and points out that § 20156(c) itself presupposes overlap with “railroad safety regulations,” instructing railroads to consider “other matters” including those not already regulated.

G. Missing the 12-month timeline: no vacatur absent a specified consequence

On the timing claim, the court aligns with Barnhart v. Peabody Coal Company and with the D.C. Circuit’s FRA-specific decisions (SMART-TD II, SMART-TD III): statutory or regulatory deadlines that do not specify consequences are treated as “spurs,” not self-destruct mechanisms. The proper remedy for unreasonable delay is generally to seek compulsion under 5 U.S.C. § 706(1), not to invalidate the eventual rule.

H. Short-line provisions: forfeiture, hazmat line-drawing, and alerters

  • Forfeiture: Several short-line objections (two-year legacy threshold; ownership-change ambiguity) were rejected because petitioners did not show they raised them in comments, consistent with Advocs. for Highway & Auto Safety v. Fed. Motor Carrier Safety Admin..
  • Hazmat legacy vs standard legacy: The court upholds the FRA’s stricter approach for initiating one-person hazmat transport without a two-year safety record; hazardous materials pose greater consequence risks, making risk assessments and special approval reasonable line-drawing.
  • Alerters: Even if the Crew Size Rule expanded alerter requirements beyond the prior >25 mph rule, the FRA acknowledged the change, addressed comments, considered costs, allowed a grace period, and offered a rational safety justification (prevent uncontrolled train movement if the lone engineer becomes incapacitated).

3.3 Impact

  • Agency authority framing in railroad safety: The decision strengthens the FRA’s ability to issue precautionary rules under 49 U.S.C. § 20103(a) without meeting an “essentiality” or statistical-proof threshold. Litigants challenging safety rules must focus on classic arbitrary-and-capricious failures (ignored factors, unexplained leaps), not on converting “necessary” into a strict evidentiary bar.
  • Validation of qualitative rulemaking records: By treating public comments and “first-hand accounts” as legitimate evidence (and citing Citadel Sec. LLC v. SEC and SMART-TD I), the court signals that experience-based evidence can carry meaningful weight in safety rulemakings.
  • Change-in-position litigation after vacatur: The court’s approach suggests that when a prior agency action has been vacated, challengers may face difficulty invoking heightened “policy reversal” scrutiny; the relevant inquiry collapses back into ordinary reasonableness review.
  • Deadlines as “spurs,” not “voiding devices”: The timing holding reduces the leverage of “missed deadline” challenges to final rules and channels disputes toward unreasonable-delay actions under § 706(1).
  • Practical effect on industry strategy: The decision invites future litigation to concentrate on the FRA’s administration of the special-approval pathway (e.g., whether denials are consistent, timely, and evidence-based) rather than facial attacks on the rule’s existence.

4. Complex Concepts Simplified

  • “Arbitrary and capricious” (APA): A court does not decide whether the rule is wise. It asks whether the agency considered the important issues, used a rational explanation, and stayed within legal bounds.
  • General rulemaking authority “as necessary”: This does not mean the agency must prove a rule is “essential” with hard numbers. It means the agency may regulate when it reasonably judges regulation is needed to advance the statute’s purpose (here, safety).
  • “Logical outgrowth” (background from SMART-TD I): A final rule must be a foreseeable development from the proposal so the public has fair notice to comment; an agency cannot propose one thing and finalize something entirely different without a new proposal.
  • Change-in-position doctrine: When an agency reverses policy, it must acknowledge the shift and give good reasons; sometimes it must do more if it contradicts prior factual findings or disrupts reliance interests.
  • Vacatur: When a court “vacates” an agency action, it nullifies it—often treated as wiping out its legal force. Here that mattered to whether there was a prior “policy” to reverse.
  • § 706(1) vs § 706(2): If the complaint is “the agency took too long,” the usual remedy is a lawsuit to compel action (§ 706(1)), not a lawsuit to invalidate the eventual action (§ 706(2)).

5. Conclusion

The Eleventh Circuit’s decision cements a permissive reading of the FRA’s safety mandate: under 49 U.S.C. § 20103(a), “as necessary” grants discretion to regulate for safety and does not impose a requirement of statistical certainty. The court further validates precautionary regulation supported by safety research, operational trends, and public comment, and it narrows the practical utility of deadline-based challenges by holding that missed timing directives do not void rules absent an explicit consequence.

The dissent illustrates the litigation frontier going forward—especially disputes about whether agencies have genuinely explained shifts in approach and whether cost analyses must include foregone savings and labor impacts. But as controlling precedent in the Eleventh Circuit, the majority opinion significantly strengthens the FRA’s hand in adopting and defending systemwide safety rules amid evolving technology and operational practices.