“As Necessary” Means Discretion: The Eleventh Circuit Upholds FRA’s Two-Person Default Crew Rule and Rejects Vacatur for Missed Rulemaking Deadlines

Introduction

In Indiana Rail Road Company v. Federal Railroad Administration (consolidated petitions), the U.S. Court of Appeals for the Eleventh Circuit reviewed the Federal Railroad Administration’s 2024 “Crew Size Rule,” which generally requires two crewmembers onboard freight trains unless a railroad qualifies for exemptions or obtains (or follows) pathways authorizing one-person operations. Multiple railroads and trade associations challenged the rule under the Administrative Procedure Act (“APA”), arguing that the FRA lacked statutory authority, acted arbitrarily and capriciously, failed to account for labor costs, conflicted with other railroad-safety statutes, and promulgated the rule too late under a 12‑month timing directive.

The court denied all petitions. The decision is significant for administrative law and transportation safety because it: (1) interprets the FRA’s “as necessary” rulemaking authority as a discretion-conferring grant rather than an “essentiality” or statistical-proof requirement; (2) addresses how vacatur of a prior agency action affects “change in position” review; and (3) confirms that missed statutory/regulatory timing targets generally do not invalidate an otherwise lawful rule absent a specified consequence.

Summary of the Opinion

Judge Rosenbaum, writing for the majority, upheld the Crew Size Rule in full and rejected each challenge:

  • Statutory authority: The phrase “as necessary” in 49 U.S.C. § 20103(a) does not impose an “essential” or heightened evidentiary threshold; it grants the agency discretion to regulate railroad safety, and the rule is reasonably related to safety.
  • Arbitrary-and-capricious challenges: The FRA reasonably relied on safety research, operational trends, and extensive public comments; it did not need “gold-standard quantitative data.”
  • Change-in-position doctrine: The 2019 Withdrawal Order had been vacated by the Ninth Circuit in Transp. Div. of the Int'l Ass'n of Sheet Metal, Air, Rail, & Transp. Workers v. Fed. R.R. Admin. (SMART-TD I), so it did not constitute an “existing policy” triggering heightened explanation; even if treated as a policy shift, the FRA sufficiently explained its new approach.
  • Costs/labor savings: Petitioners did not show the FRA ignored a substantial cost category; arguments about “foregone savings” rested on speculation that special approval would be illusory.
  • No conflict with risk-reduction programs: The Rail Safety Improvement Act’s risk-reduction program requirements do not displace or limit FRA’s separate safety rulemaking authority.
  • 12‑month deadline: Missing the 12‑month timing directive does not void the rule; the appropriate remedy for delay is an action to compel agency action, not vacatur.
  • Short line issues: Several arguments were forfeited for failure to raise them during rulemaking; the hazmat/legacy and alerter components were reasonably explained.

Judge Branch dissented, concluding that the rule was arbitrary and capricious because the FRA allegedly relied on substantially the same record it previously found inadequate and because its cost analysis failed to account for labor costs associated with maintaining two-person crews.

Analysis

1) Precedents Cited

A. The court’s APA review framework

  • FCC v. Prometheus Radio Project, 592 U.S. 414 (2021): The majority treats this as the central modern articulation of arbitrary-and-capricious review—courts ensure the agency acted within a “zone of reasonableness” and reasonably considered and explained its decision, without substituting policy judgment.
  • 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)): Used to emphasize the “exceedingly deferential” posture of APA review.
  • Ins. Mktg. Coal. Ltd. v. FCC, 127 F.4th 303 (11th Cir. 2025): Cited for the distinction between deferential APA review and de novo review of statutory-authority questions.

B. Interpreting “as necessary” as a general rulemaking grant

  • United States v. Florida, 938 F.3d 1221 (11th Cir. 2019) (quoting Mourning v. Family Publ'ns Serv., Inc., 411 U.S. 356 (1973)), and U.S. Pipe & Foundry Co. v. Webb, 595 F.2d 264 (5th Cir. 1979): Provide the key interpretive principle for broad delegations—regulations are valid if “reasonably related” to the enabling statute’s purposes.
  • Thorpe v. Hous. Auth. of City of Durham, 393 U.S. 268 (1969): Part of the Supreme Court lineage supporting broad administrative implementation authority.
  • Republic of Sudan v. Harrison, 587 U.S. 1 (2019); Home Depot U.S.A., Inc. v. Jackson, 587 U.S. 435 (2019): Deployed for contextual, whole-text interpretive method and the admonition against construing words “in a vacuum.”
  • Sierra Club v. Jackson, 648 F.3d 848 (D.C. Cir. 2011): Persuasive authority that “as necessary” language can confer discretion rather than impose a judicially manageable evidentiary threshold.
  • United States v. Rodriguez, 588 F.2d 1003 (5th Cir. 1979): Old Fifth Circuit authority treating “as necessary” as discretion-conferring.
  • Drummond v. S. Co. Servs., Inc., 177 F.4th 1076 (11th Cir. 2026) (citing Georgia v. President of the U.S., 46 F.4th 1283 (11th Cir. 2022) (opinion of Grant, J.)): Used to justify reliance on statutory purpose provisions to resolve ambiguity.
  • 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): Cited for characterizing the FRA’s mandate as broad and safety-centered.

C. Petitioners’ reliance on Supreme Court “necessity” cases, rejected

  • Indus. Union Dep't, AFL- CIO v. Am. Petroleum Inst., 448 U.S. 607 (1980) (“Benzene”): The majority distinguishes OSHA’s context and statutory structure (including the “appropriate” framing and “most serious hazards first” features), finding it does not convert FRA’s “as necessary” into an “essentiality” requirement.
  • Nat'l Mining Ass'n v. United Steel Workers, 985 F.3d 1309 (11th Cir. 2021): Used as an Eleventh Circuit gloss on Benzene and how statutory context matters to importing “threshold finding” requirements.
  • Alabama Ass'n of Realtors v. Department of Health and Human Services, 594 U.S. 758 (2021) (per curiam): The majority uses this to reinforce a “fit to statutory purpose” inquiry, not an evidentiary straitjacket triggered by the word “necessary.”

D. Evidence, data, and agencies’ predictive judgments

  • 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)): Supports the proposition that agencies need not base every action on empirical data and may rely on qualitative evidence and expert 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)): The majority treats railroad safety as “precautionary,” permitting protective regulation without strict step-by-step causation proof.
  • Stilwell v. Off. of Thrift Supervision, 569 F.3d 514 (D.C. Cir. 2009): Quoted for the “levee” principle—agencies need not wait for disaster to regulate.
  • Sunshine State Bank v. Fed. Deposit Ins. Corp., 783 F.2d 1580 (11th Cir. 1986): Used to justify deference to technical expertise and “informed prediction.”

E. Change-in-position doctrine and vacatur

  • Food & Drug Admin. v. Wages & White Lion Invs., LLC, 604 U.S. 542 (2025): Provides the two-step “change-in-position doctrine” structure.
  • FCC v. Fox Tel- evision Stations, Inc., 556 U.S. 502 (2009): The baseline requirements for acknowledging and justifying a policy shift; and the “more detailed justification” requirement in certain circumstances.
  • United States v. Sigma Int'l, Inc., 300 F.3d 1278 (11th Cir. 2002): Used to support the view that vacatur removes legal effect, supporting the majority’s conclusion that a vacated order is not an “existing policy.”
  • Smiley v. Citibank (S.D.), N.A., 517 U.S. 735 (1996): Cited to support that absent an official agency position, change-in-position review may not apply.

F. Costs and cost consideration

  • Michigan v. EPA, 576 U.S. 743 (2015): The petitioners’ flagship cost case; the majority distinguishes it based on statutory text (“appropriate and necessary” vs “as necessary”) and emphasizes its flexibility even when applicable.

G. Statutory deadlines and remedies for delay

  • 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 SMART-TD III, 40 F.4th 646: Persuasive authority rejecting vacatur as a remedy for missing the same FRA 12‑month target.
  • Barnhart v. Peabody Coal Company, 537 U.S. 149 (2003): The controlling Supreme Court principle—absent a specified consequence for missed timing provisions, courts generally do not impose vacatur as a sanction.
  • McIntosh v. United States, 601 U.S. 330 (2024): Reinforces that timing directives without specified consequences are “spur[s]” rather than jurisdictional bars.
  • United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954): Acknowledged for the principle that agencies are generally bound by their own regulations, but not treated as creating vacatur for missed deadlines here.

2) Legal Reasoning

A. The core holding: “as necessary” is discretionary, not a safety-proof condition

The majority treats 49 U.S.C. § 20103(a) as a classic broad safety delegation: the Secretary (through FRA) “shall prescribe regulations … for every area of railroad safety” with “as necessary” acting as a practical limiter that tempers any literal duty to regulate “every” safety area. Read in context, “as necessary” expands agency discretion over when and how to regulate rather than restricting it by demanding statistical certainty.

Crucially, the court refuses to transform the delegation into an “evidentiary bar” requiring proof that a regulation is “essential” to safety. Instead, once the subject is within “railroad safety,” the familiar APA inquiry governs: was the agency’s choice reasonable and reasonably explained?

B. The evidence question: the FRA can regulate prophylactically

On the merits, the court accepts FRA’s multi-source rationale: human-factor accident trends, operational changes (including train length), uncertainty around Positive Train Control, and extensive comments from frontline railroad workers and emergency responders describing safety functions performed by a second crewmember. The majority explicitly rejects the premise that the APA requires quantitative “gold-standard” proof before action, invoking FCC v. Prometheus Radio Project and its own precedent (Citadel Sec. LLC v. SEC) to underscore that agencies may rely on qualitative evidence and predictive judgments in precautionary settings.

C. The “change in position” fight: vacatur matters (and the majority’s path to upholding the rule)

Petitioners argued the FRA contradicted its 2019 Withdrawal Order (which concluded crew-size regulation was unwarranted). The majority’s key move is to treat the 2019 Withdrawal Order—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)—as no longer “existing policy,” thus limiting the need for heightened “policy reversal” justification.

Even assuming a policy shift, the majority finds the FRA adequately explained why it regulated now: it revisited research after SMART-TD I criticized the earlier reasoning, and it pointed to post-2019 trends and technology uncertainties. The dissent saw this as insufficient and circular; the majority saw it as within the zone of reasonableness, especially given the catastrophic downside of rare but severe rail accidents.

D. Costs: “foregone savings” are not a demonstrated ignored cost category

The majority distinguishes Michigan v. EPA on statutory text and rejects the claim that the FRA ignored “the largest” costs (lost labor savings from potential one-person operations). The court emphasizes that the Crew Size Rule contains lawful pathways to one-person operations, including special approval, and it refuses to presume the FRA will bad-faith deny petitions. On the record presented, petitioners’ cost claim was not substantiated with analysis tied to the actual 2024 rule structure (as opposed to the different 2016 proposal).

E. No statutory conflict with risk-reduction programs

Petitioners argued the Rail Safety Improvement Act’s mandated “risk reduction program” for Class I railroads displaced FRA’s ability to regulate crew size. The majority rejects that as textually implausible and inconsistent with the statute’s express contemplation that risk programs cover “other matters, including those not covered by railroad safety regulations.”

F. The 12‑month rulemaking target: delay does not void power

Relying on Barnhart v. Peabody Coal Company and McIntosh v. United States (and aligning with SMART-TD II and SMART-TD III), the court holds that absent an explicit consequence for missing the time limit, courts should not impose vacatur. The proper remedy for agency delay is to sue to compel action under 5 U.S.C. § 706(1), not to invalidate the final product.

3) Impact

  • Administrative law—textual limits on “necessity” arguments: Regulated entities often argue “necessary” delegations require near-proof of efficacy. This opinion treats “as necessary” as primarily a discretion clause, pushing disputes into deferential APA review rather than de novo “power to act” litigation.
  • Vacatur and policy reversal: By treating a vacated agency order as non-policy for change-in-position purposes, the decision may reduce the leverage of “you said the opposite before” arguments where the earlier action has been judicially set aside.
  • Safety regulation in the face of uncertainty: The court strongly endorses precautionary regulation where downside risks are catastrophic and data may be sparse, echoing environmental and financial-regulation logic (“build the levee”).
  • Rulemaking deadlines: The opinion reinforces a growing body of authority that timing directives rarely carry the remedy of invalidation; litigants must seek mandamus/compulsion rather than ex post vacatur.
  • Railroad operations: The rule’s structure—default two-person crews with “notice” and “special approval” off-ramps—survives intact, encouraging railroads that seek one-person operations (especially for hazardous materials) to invest in risk assessment, mitigation measures, and reporting.

Complex Concepts Simplified

  • “Arbitrary and capricious” review (APA): A court does not ask whether it would have made the same policy choice. It asks whether the agency considered the important issues, used reasoned logic, and explained its decision.
  • “As necessary” in a rulemaking statute: Here it means “the agency may decide when regulation is needed,” not “the agency may regulate only when it has conclusive statistical proof.”
  • Vacatur: When a court “vacates” an agency action, it is treated as legally null. The majority leverages that to argue the 2019 Withdrawal Order cannot function as a binding “prior policy” for heightened reversal scrutiny.
  • Change-in-position doctrine: When an agency reverses policy, it must acknowledge the change and give good reasons. Sometimes it must do more—especially if it contradicts key earlier factual findings or disrupts reliance interests.
  • Special approval vs. notice pathways: Smaller railroads can sometimes proceed with one-person crews by notifying the FRA and meeting baseline safety requirements; larger railroads and hazmat one-person operations generally require FRA approval supported by a formal risk assessment and subject to public comment.
  • Alerter requirement: A device that detects operator inactivity and triggers alarms and automatic braking—important in one-person operations because there is no second person to intervene if the engineer becomes incapacitated.
  • Remedy for missed deadlines: Courts typically do not invalidate a late rule unless Congress specified that consequence; challengers instead must sue to force the agency to act sooner.

Conclusion

The Eleventh Circuit’s decision cements a deferential framework for FRA safety regulation under 49 U.S.C. § 20103(a): “as necessary” is a broad discretion grant, not a demand for conclusive safety statistics. The court also underscores two remedial principles with broader administrative-law significance: (1) vacatur of a prior agency action can blunt “policy reversal” attacks, and (2) missed rulemaking timing targets do not typically strip agencies of power or require vacatur absent an explicit statutory consequence. Against a vigorous dissent focused on evidentiary continuity and cost accounting, the majority validates precautionary safety rulemaking supported by expert judgment, trend data, and extensive public comment.