“As Necessary” Means Discretion: The Eleventh Circuit Upholds FRA’s Two-Person Crew Rule and Rejects Deadline-Vacatur and Data-Threshold Attacks

I. Introduction

This consolidated set of petitions—captioned in relevant part as BNSF Railway Company v. Federal Railroad Administration (alongside petitions by other railroads and trade groups)—presented a direct challenge to the Federal Railroad Administration’s 2024 “Crew Size Rule,” which generally requires two crewmembers onboard freight trains unless a one-person operation is shown to be “as safe or safer”.

The petitioners (split into the “AAR Petitioners” representing larger railroads and the “Short Line Petitioners” representing smaller carriers) argued that the FRA: (1) lacked statutory authority because a two-person rule was not “necessary” for safety; (2) acted arbitrarily by regulating without new data and by changing course from a 2019 withdrawal; (3) failed to consider labor-cost implications; (4) conflicted with the Rail Safety Improvement Act’s risk-reduction-program framework; and (5) exceeded its authority by missing a 12-month regulatory deadline. The Eleventh Circuit denied all petitions.

II. Summary of the Opinion

  • Statutory authority: The court held that “as necessary” in 49 U.S.C. § 20103(a) is a discretion-conferring phrase within a broad safety rulemaking grant, not a stringent evidentiary threshold requiring “essential” proof.
  • Reasoned decisionmaking and evidence: The FRA could act precautionarily based on research, operational trends (e.g., longer trains), PTC uncertainty, and extensive public comments; the APA does not demand gold-standard quantitative data.
  • 2019 withdrawal and change-in-position: The court treated the 2019 Withdrawal Order as vacated and therefore not an “existing policy” triggering heightened change-in-position scrutiny; even if scrutiny applied, the FRA adequately explained why it acted now.
  • Costs: Michigan v. EPA did not impose a cost-accounting requirement here, and the petitioners’ “foregone labor savings” theory was largely speculative given the rule’s approval pathways to one-person operations.
  • Risk reduction program: No conflict existed; the statute contemplates that risk-reduction plans address matters both covered and not covered by federal regulations.
  • 12-month deadline: Missing the 12-month target does not void rulemaking authority; absent a specified consequence, the remedy is typically a suit to compel action—not vacatur of the eventual rule.

A dissent would have vacated the rule as arbitrary and capricious, focusing on the asserted lack of a safety nexus between crew size and accident data, and on an allegedly defective cost analysis that ignored labor costs.

III. Analysis

A. Precedents Cited (and How They Shaped the Decision)

1. Deference in APA “arbitrary and capricious” review

  • FCC v. Prometheus Radio Project, 592 U.S. 414 (2021): The court used Prometheus for the core framing of APA review—courts do not substitute policy judgments and only ensure the agency reasonably considered issues and reasonably explained its choice. Prometheus also supported the proposition that the APA imposes no general obligation to commission empirical studies before regulating.
  • City of North Mia. v. Fed. Aviation Admin., 47 F.4th 1257 (11th Cir. 2022) (quoting Miccosukee Tribe of Indians of Fla. v. United States, 566 F.3d 1257 (11th Cir. 2009)): Cited to emphasize that arbitrary-and-capricious review is “exceedingly deferential,” reinforcing the uphill posture for regulated parties challenging safety regulations.
  • Sunshine State Bank v. Fed. Deposit Ins. Corp., 783 F.2d 1580 (11th Cir. 1986): Provided support for agency reliance on expertise and “informed prediction” in areas not susceptible to strict proof—important to validating FRA’s forward-looking safety judgment.

2. “As necessary” as a broad rulemaking grant (not an evidentiary bar)

  • United States v. Florida, 938 F.3d 1221 (11th Cir. 2019) (quoting Mourning v. Family Publ'ns Serv., Inc., 411 U.S. 356 (1973)): This line supplied the controlling interpretive standard for broad enabling acts: a regulation stands if “reasonably related to the purposes of the enabling legislation.” The court rejected the petitioners’ attempt to convert “necessary” into “essential.”
  • U.S. Pipe & Foundry Co. v. Webb, 595 F.2d 264 (5th Cir. 1979) and Thorpe v. Hous. Auth. of City of Durham, 393 U.S. 268 (1969): Used to show that “necessary” language routinely appears in broad delegations and has historically been read as a permissive nexus requirement rather than a hard evidentiary gate.
  • Sierra Club v. Jackson, 648 F.3d 848 (D.C. Cir. 2011): The court relied on this as persuasive authority that “as necessary” can denote discretion where the statute gives no guidance on necessity; it undercut the petitioners’ effort to treat “necessary” as judicially enforceable proof-of-need.
  • United States v. Rodriguez, 588 F.2d 1003 (5th Cir. 1979): Cited for the ordinary meaning that “as necessary” contemplates discretion about when a measure is needed.

3. Distinguishing “Benzene” and COVID-era extraordinary-power cases

  • Indus. Union Dep't, AFL-CIO v. Am. Petroleum Inst., 448 U.S. 607 (1980): Petitioners invoked Benzene to demand a “threshold finding” of significant risk. The court distinguished it as grounded in OSHA’s statutory structure (including cost-related premises and prioritization features) and as addressing a far more pervasive regulatory impact.
  • Nat'l Mining Ass'n v. United Steel Workers, 985 F.3d 1309 (11th Cir. 2021): Used to explain why Benzene’s logic does not mechanically transfer; the Eleventh Circuit emphasized Benzene’s dependence on statutory features absent from the FRA’s enabling scheme.
  • Alabama Association of Realtors v. Department of Health and Human Services, 594 U.S. 758 (2021): Rather than supporting petitioners, it reinforced a “fit” analysis—how closely the regulation relates to statutory purpose—consistent with the court’s “reasonably related” approach.

4. Agencies may regulate without “gold-standard” data and may rely on comments

  • Citadel Sec. LLC v. SEC, 178 F.4th 621 (11th Cir. 2026) (quoting Nasdaq Stock Mkt. LLC v. SEC, 38 F.4th 1126 (D.C. Cir. 2022)): Cited for the proposition that administrative law does not require empirical certainty; agencies cannot be confined to quantitative proof and may act on informed judgment.
  • Miami-Dade County v. EPA, 529 F.3d 1049 (11th Cir. 2008) (quoting Ethyl Corp. v. EPA, 541 F.2d 1 (D.C. Cir. 1976)): Anchored the court’s acceptance of precautionary regulation; the court stressed that “precautionary” statutes do not demand step-by-step causal proof.
  • Stilwell v. Off. of Thrift Supervision, 569 F.3d 514 (D.C. Cir. 2009): Quoted for the “levee” principle—agencies may adopt prophylactic rules before harms materialize.
  • Perez v. Mortg. Bankers Ass'n, 575 U.S. 92 (2015): Petitioners argued the FRA failed to respond to significant comments about data collection; the court invoked the general obligation to respond to significant comments, but found the FRA adequately responded to the substance of the “insufficient evidence” criticism.

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

  • Food & Drug Admin. v. Wages & White Lion Invs., LLC, 604 U.S. 542 (2025), FCC v. Fox Television Stations, Inc., 556 U.S. 502 (2009), and Encino Motorcars, LLC v. Navarro, 579 U.S. 211 (2016): The court stated the two-step framework for change-in-position review and the circumstances requiring a more detailed justification.
  • United States v. Sigma Int'l, Inc., 300 F.3d 1278 (11th Cir. 2002): The court drew on Sigma to treat vacatur as nullification—supporting its conclusion that a vacated agency order is not an “existing policy” for heightened change-in-position scrutiny.
  • Smiley v. Citibank (S.D.), N.A., 517 U.S. 735 (1996): Used to reinforce that, absent a cognizable change of official agency position, heightened “policy reversal” scrutiny is misplaced.

6. Cost consideration and its limits

  • Michigan v. EPA, 576 U.S. 743 (2015): The petitioners relied on it to require a labor-cost analysis. The court distinguished Michigan on statutory text: FRA’s authority lacks the key “appropriate” term; indeed Congress had removed “appropriate” from the FRA rulemaking provision, weakening any inference of a mandatory cost calculus.

7. Overlapping statutory schemes (risk-reduction programs)

  • Am. Hosp. Ass'n v. NLRB, 499 U.S. 606 (1991): Cited for the interpretive caution against inferring that Congress silently curtailed broad rulemaking authority through later statutes lacking explicit limitation language.

8. Missed deadlines and remedy (no “deadline vacatur”)

  • Barnhart v. Peabody Coal Company, 537 U.S. 149 (2003) (quoting United States v. James Daniel Good Real Prop., 510 U.S. 43 (1993)): Controlled the outcome on the 12-month timeline argument: absent a specified consequence, courts do not impose vacatur as a sanction for tardiness.
  • Transp. Div. of Int'l Ass'n of Sheet Metal, Air, Rail & Transp. Workers v. Fed. R.R. Admin. (SMART-TD II), 10 F.4th 869 (D.C. Cir. 2021) and Transp. Div. of Int'l Ass'n of Sheet Metal, Air, Rail & Transp. Workers v. Fed. R.R. Admin. (SMART-TD III), 40 F.4th 646 (D.C. Cir. 2022): Persuasive authority rejecting the same deadline-vacatur theory in FRA contexts; the Eleventh Circuit aligned with those holdings.
  • McIntosh v. United States, 601 U.S. 330 (2024): Used to characterize timing rules as “spur” provisions, not jurisdiction-stripping deadlines, absent express consequences.

B. Legal Reasoning

1. The court’s central statutory holding: “as necessary” does not mean “only if proven essential”

The opinion’s most consequential doctrinal move is its interpretation of 49 U.S.C. § 20103(a). Rather than reading “as necessary” as an evidentiary gate that forbids regulation absent conclusive proof, the court reads it in context as softening what otherwise would be an implausibly mandatory command to regulate “every area” not already covered. The phrase thus grants discretion about whether, when, and how to regulate for safety, constrained by the APA’s reasonableness requirements.

This framing has practical bite: it positions the Crew Size Rule as a conventional exercise of general safety authority, reviewable for reasonableness, not as a quasi-adjudicative “necessity finding” requiring a particular quantum of data.

2. APA reasonableness without quantitative certainty

The court accepts the FRA’s reliance on multiple forms of evidence: safety research on cognitive/collaborative demands, operational trends (longer trains), uncertainty and outage concerns associated with Positive Train Control, and voluminous first-hand comments describing the safety role of a second crewmember. The court explicitly rejects the premise that an agency must wait for statistically robust accident data—particularly where the regulatory project is precautionary and the downside risk of catastrophic derailments is high.

3. Treatment of the 2019 Withdrawal Order after Ninth Circuit vacatur

The court reasons that because the Ninth Circuit vacated 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), 988 F.3d 1170 (9th Cir. 2021), there was no surviving “existing policy” to trigger heightened change-in-position scrutiny. Even assuming a policy shift, the FRA’s explanations—reassessing prior research and addressing safety trends and PTC uncertainty—were enough under deferential review.

4. Costs: separating “real compliance costs” from “speculative foregone savings”

The court treats the petitioners’ main cost contention as speculative: the rule does not impose a categorical two-person requirement in perpetuity; it creates pathways (notice or special approval) to one-person operations if shown “as safe or safer.” The court also emphasizes that the legal hook for a mandatory cost calculus (as in Michigan v. EPA) is textually weaker in the FRA statute, especially given Congress’s deletion of “appropriate” from the enabling provision.

5. Deadline enforcement: remedy is compulsion, not vacatur

Relying on Barnhart, the court holds that a missed timing directive is not an authority-destroying condition. If parties want speed, they may pursue a claim for “unreasonably delayed” agency action under 5 U.S.C. § 706(1); they may not use delay to retroactively void a final rule.

C. Impact

  • Administrative-law impact (rail safety and beyond): The decision strengthens the position that general “necessary” language in enabling statutes is not an evidentiary straitjacket. Agencies may act on mixed records—research, expert judgment, and public comment—without waiting for definitive statistical proof.
  • Precautionary regulation endorsed: The opinion explicitly situates rail safety regulation as preventive; it signals judicial tolerance for prophylactic rules in high-consequence domains.
  • Change-in-position fights may turn on vacatur: By treating vacated agency actions as non-policies for heightened scrutiny, the court gives agencies litigation room to re-engage on remand without being boxed in by the “prior policy” label—though the dissent highlights that this is contestable and may invite further appellate debate.
  • Strategic consequences for challengers: The court’s emphasis on forfeiture (arguments not properly raised or preserved) and its rejection of “gotcha” comment-response theories underscores the need for targeted, record-based challenges during notice-and-comment.
  • Industry operations: The rule’s structure (default two-person, with approval-based one-person options) is judicially validated, encouraging railroads to invest in risk assessments and mitigation protocols if seeking one-person operations—especially for hazardous materials.

IV. Complex Concepts Simplified

  • “Arbitrary and capricious” review: Courts do not decide whether a rule is the best policy; they ask whether the agency considered key issues and gave a rational explanation supported by the record.
  • Statutory authority vs. reasonableness: “Authority” asks whether Congress empowered the agency to regulate this subject at all; “reasonableness” asks whether the agency’s chosen rule is adequately explained and grounded.
  • “As necessary” in § 20103(a): The court reads this as giving the FRA discretion about when regulation is warranted, not requiring conclusive proof that a regulation is indispensable.
  • Change-in-position doctrine: When an agency reverses an existing policy, it must acknowledge the change and give good reasons. Sometimes it must give more detailed reasons (e.g., contradicting prior factual findings). Here, the majority viewed the earlier “policy” as wiped out by vacatur.
  • Forfeiture in administrative litigation: Arguments generally must be raised to the agency during rulemaking (and properly presented on appeal) or they may be lost.
  • “Legacy” operations and “special approval”: “Legacy” refers to one-person operations with an established track record; “special approval” is a petition-and-risk-assessment process requiring FRA sign-off—especially important for hazardous materials.
  • PTC and “alerters”: PTC is a system designed to prevent certain categories of collisions and derailments, but it does not replace all conductor functions. An “alerter” is a cab device that detects engineer inactivity and can automatically brake the train.

V. Conclusion

The Eleventh Circuit’s decision cements three practical rules for railroad-safety rulemaking and APA challenges: (1) “as necessary” in the FRA’s enabling statute is a broad discretion grant, not a heightened proof requirement; (2) the FRA may regulate precautionarily based on research, trend data, and substantial public comment without waiting for definitive statistical causation; and (3) missed regulatory timing targets do not void agency action absent express statutory consequences, with compulsion—not vacatur—being the usual remedy for delay.

While the dissent frames the record as too thin and the cost analysis as incomplete, the majority’s approach reflects a strong deference posture in safety regulation—especially where the agency structures the rule to permit departures (one-person crews) through documented, reviewable safety showings.