Indiana Rail Road Company v. Federal Railroad Administration, et al

FOR PUBLICATION

In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 24-11076
____________________

FLORIDA EAST COAST RAILWAY LLC,
Petitioner,
versus

FEDERAL RAILROAD ADMINISTRATION,
ADMINISTRATOR, FEDERAL RAILROAD
ADMINISTRATION,
UNITED STATES DEPARTMENT OF TRANSPORTATION,
Respondents,

INTERNATIONAL ASSOCIATION OF SHEET METAL, AIR,
RAIL AND TRANSPORTATION WORKERS-
TRANSPORTATION DIVISION
Intervenor.

USCA11 Case: 24-11076 Document: 97-1 Date Filed: 08/11/2026 Page: 1 of 93

2 Opinion of the Court 24-11076
____________________
Petitions for Review of a Decision of the
Federal Railroad Administration
Agency No. FRA-2021-0032
____________________

____________________
No. 24-11300
____________________

TEXAS & NORTHERN RAILWAY COMPANY,
Petitioner,
versus

FEDERAL RAILROAD ADMINISTRATION,
ADMINISTRATOR, FEDERAL RAILROAD
ADMINISTRATION,
U.S. DEPARTMENT OF TRANSPORTATION,
Respondents.

____________________
Petitions for Review of a Decision of the
Federal Railroad Administration
Agency No. FRA-2021-0032
____________________

____________________
No. 24-11366
____________________

ASSOCIATION OF AMERICAN RAILROADS,
USCA11 Case: 24-11076 Document: 97-1 Date Filed: 08/11/2026 Page: 2 of 93

24-11076 Opinion of the Court 3
Petitioner,
versus

FEDERAL RAILROAD ADMINISTRATION,
ADMINISTRATOR, FEDERAL RAILROAD
ADMINISTRATION,
U.S. DEPARTMENT OF TRANSPORTATION,
Respondents.

____________________
Petitions for Review of a Decision of the
Federal Railroad Administration
Agency No. FRA-2021-0032
____________________

____________________
No. 24-11367
____________________

AMERICAN SHORT LINE AND REGIONAL RAILROAD
ASSOCIATION,
Petitioner
versus

FEDERAL RAILROAD ADMINISTRATION,
ADMINISTRATOR, FEDERAL RAILROAD
ADMINISTRATION,
U.S. DEPARTMENT OF TRANSPORTATION,
USCA11 Case: 24-11076 Document: 97-1 Date Filed: 08/11/2026 Page: 3 of 93

4 Opinion of the Court 24-11076
Respondents.

____________________
Petitions for Review of a Decision of the
Federal Railroad Administration
Agency No. FRA-2021-0032
____________________

____________________
No. 24-11428
____________________

INDIANA RAIL ROAD COMPANY,
Petitioner,
versus

FEDERAL RAILROAD ADMINISTRATION,
ADMINISTRATOR, FEDERAL RAILROAD
ADMINISTRATION,
U.S. DEPARTMENT OF TRANSPORTATION,
Respondents.

____________________
Petitions for Review of a Decision of the
Federal Railroad Administration
Agency No. FRA-2021-0032
____________________

USCA11 Case: 24-11076 Document: 97-1 Date Filed: 08/11/2026 Page: 4 of 93

24-11076 Opinion of the Court 5
____________________
No. 24-11444
____________________

UNION PACIFIC RAILROAD CO.,
Petitioner,
versus

FEDERAL RAILROAD ADMINISTRATION,
ADMINISTRATOR, FEDERAL RAILROAD
ADMINISTRATION,
U.S. DEPARTMENT OF TRANSPORTATION,
Respondents.

____________________
Petitions for Review of a Decision of the
Federal Railroad Administration
Agency No. FRA-2021-0032
____________________

____________________
No. 24-11445
____________________

NEBRASKA CENTRAL RAILROAD COMPANY,
Petitioner,
versus

USCA11 Case: 24-11076 Document: 97-1 Date Filed: 08/11/2026 Page: 5 of 93

6 Opinion of the Court 24-11076
FEDERAL RAILROAD ADMINISTRATION,
ADMINISTRATOR, FEDERAL RAILROAD
ADMINISTRATION,
U.S. DEPARTMENT OF TRANSPORTATION,
Respondents.

____________________
Petitions for Review of a Decision of the
Federal Railroad Administration
Agency No. FRA-2021-0032
____________________

____________________
No. 24-12003
____________________

BNSF RAILWAY COMPANY,
Petitioner,
versus

FEDERAL RAILROAD ADMINISTRATION,
ADMINISTRATOR, FEDERAL RAILROAD
ADMINISTRATION,
U.S. DEPARTMENT OF TRANSPORTATION,
Respondents.

USCA11 Case: 24-11076 Document: 97-1 Date Filed: 08/11/2026 Page: 6 of 93

24-11076 Opinion of the Court 7
____________________
Petitions for Review of a Decision of the
Federal Railroad Administration
Agency No. FRA-2021-0032
____________________

Before R
OSENBAUM, BRANCH, and KIDD, Circuit Judges.
R
OSENBAUM, Circuit Judge:
It’s hard to tell the United States’s story without dedicating
a long chapter to the railroad. Back in 1869, the Transcontinental
Railroad tied together a disparate country in a new way. Today, rail
continues to play a critical role in transporting people and goods.
But like all forms of transportation, trains have posed some
safety concerns f rom the beginning. The “Angola Horror” of De-
cember 1867 drove a wave of safety reforms after some 50 people
died in a train derailment and fire in New York.
1
And on occasion,
unfortunately, train accidents continue to happen today.
2

Still, technology has helped. Yet as technology has evolved,
railroads have moved towards using smaller and smaller train
crews. So in recent years, the Federal Railroad Administration

1
Rich Kellman, The Angola Horror of 1867; Train Crash Led to Rail Safety,
B
UFFALO TORONTO PUB. MEDIA (Jan. 4, 2011), https://www.btpm.org/2011-
01-04/the-angola-horror-of-1867-train-crash-led-to-rail-safety
[https://perma.cc/R5ER-MAX9].
2
See, e.g., Peter Eavis, Since Ohio Train Derailment, Accidents Have Gone Up, Not
Down, N.Y.
TIMES (Jan. 28, 2024), https://www.ny-
times.com/2024/01/28/business/ohio-train-derailment-safety-east-pales-
tine.html [https://perma.cc/QP8J-Y8LY].
USCA11 Case: 24-11076 Document: 97-1 Date Filed: 08/11/2026 Page: 7 of 93

8 Opinion of the Court 24-11076
(“FRA”) has fielded concerns that some railroads’ shift towards one-
person train crews could pose safety risks.
In 2024, the FRA issued the regulation that sparked this case.
See 89 Fed. Reg. 25052 (Apr. 9, 2024). That regulation, the “Crew
Size Rule” or “Rule,” requires railroads to operate with at least two
crewmembers on board unless using a one-person crew would be
at least as safe.
Some parts of the rail industry dislike this new requirement.
Six railroads and two industry trade organizations (“Petitioners” or
“Railroads”) filed petitions for review of the FRA’s rulemaking. We
consolidated those petitions in this Court.
The Railroads assert that the FRA violated the Administra-
tive Procedure Act by exceeding its statutory authority and acting
arbitrarily and capriciously in several ways. One group of petition-
ers, representing the interests of larger railroads, raises five issues.
A second group, representing smaller railroads, raises another two.
We address these concerns below. But because none of the
Railroads’ arguments have merit, we deny their petitions.
I. BACKGROUND
A. Regulation of Railroad Safety
The Secretary of Transportation holds broad power to issue
regulations to promote railroad safety. The Federal Railroad Safety
Act of 1970, as amended, authorizes that power. It provides, “The
Secretary of Transportation, as necessary, shall prescribe
USCA11 Case: 24-11076 Document: 97-1 Date Filed: 08/11/2026 Page: 8 of 93

24-11076 Opinion of the Court 9
regulations and issue orders for every area of railroad safety.” 49
U.S.C. § 20103(a). The Secretary delegated this authority to the
Administrator of the FRA, an agency within the U.S. Department
of Transportation. 49 C.F.R. § 1.89(a).
Under that delegation, the FRA has issued a wide range of
safety regulations. These rules address, for example, track inspec-
tions, Id. § 213.233; qualification of locomotive engineers and train
conductors, id. pts. 240, 242; locomotives’ braking systems, id.
§ 229.13; random drug and alcohol testing of railroad employees,
id. § 219.603; and track switches, id. § 213.135.
B. Past Regulatory Attention to Train Crew Size
Technological changes have allowed railroads to shrink
their average crew size over time. The number of crewmembers
on each train has dropped from around five in the 1960s to two in
the 1990s. See 87 Fed. Reg. 45564, 45567 col.1 (July 28, 2022).
Today, most railroad operations use at least a two-person
crew, consisting of a locomotive engineer and a conductor. Id. at
45578 col.1. The locomotive engineer performs nearly all actions
that control the movement of a train. Id. At the same time, the
conductor leads the train crew as a whole, managing the train con-
sist (the cars that make up the train), interacting with dispatchers
and others outside the train cab, and dealing with unusual situa-
tions like mechanical problems. Id. at 45567 col.3–45568 col.1.
In recent years, though, more railroads have started operat-
ing with a one-person crew. See id. at 45578 col.2.
USCA11 Case: 24-11076 Document: 97-1 Date Filed: 08/11/2026 Page: 9 of 93

10 Opinion of the Court 24-11076
Before the Crew Size Rule, no regulation specifically regu-
lated minimum crew size. Yet the seeds for that regulation were
planted more than a decade earlier.
Regulatory attention to one-person crews spiked after a cat-
astrophic accident in Quebec, Canada, in July 2013. A train with a
one-person crew saw numerous crude-oil tank cars derail at the
town of Lac-Mégantic. See 87 Fed. Reg. at 45568 col.3–45569 col.1.
The ensuing explosions and fires caused 47 fatalities and required
2,000 people to evacuate the surrounding areas. See id.
The FRA wasted no time trying to prevent something simi-
lar from happening here. The next month, in August 2013, the
FRA directed the Railroad Safety Advisory Committee to “review
whether train crew staffing practices affect railroad safety.” See 81
Fed. Reg. 13918, 13936 col.2 (Mar. 15, 2016). But while that com-
mittee conducted its review, another major accident occurred, this
time in Casselton, North Dakota. There, a multimember crew
took “heroic actions” to prevent a crude-oil fire from spiraling out
of control after a crude-oil train collided with a derailed “grain
train.” Id. at 13923 col.2–13924 col.3. The committee’s working
group did not reach consensus on recommendations by the April
1, 2014, deadline. Id. at 13939 col.1.
Two years later, in March 2016, the FRA started a rulemak-
ing proceeding to regulate crew size. Id. at 13918 col.1. The notice
of proposed regulation (“2016 Notice”) described a rule that would
have generally required trains to operate with at least two crew-
members, with exceptions for “operations that FRA believes do not
USCA11 Case: 24-11076 Document: 97-1 Date Filed: 08/11/2026 Page: 10 of 93

24-11076 Opinion of the Court 11
pose significant safety risks . . . by using fewer than two-person
crews.” Id. The 2016 Notice contemplated exceptions for most
railroads that had already used one-person crews since before 2015.
Id. at 13964 col.2–13966 col.3. It also considered options for allow-
ing railroads to start new one-person operations after submitting
certain information to the FRA, with agency approval required in
some instances. See id.
In 2019, the FRA withdrew the 2016 Notice. 84 Fed. Reg.
24735 (May 29, 2019) (“Withdrawal Order”). The agency explained
its view that a crew-size rule was unwarranted because “FRA’s ac-
cident/incident safety data does not establish that one-person op-
erations are less safe than multi-person train crews.” Id. at 24739
col.2. Besides declining to issue a crew-size regulation, the With-
drawal Order also purported to “negatively preempt any state
laws” requiring a minimum number of crewmembers. Id. at
24741 col.3.
In 2021, the U.S. Court of Appeals for the Ninth Circuit va-
cated the Withdrawal Order and remanded to the FRA. 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). The
court reasoned that the Withdrawal Order was, in effect, a nation-
wide one-person crew rule. Id. at 1182. Among other flaws, the
court held that a one-person crew-size mandate was not a “logical
outgrowth” of the initial proposal. Id. at 1180–81. The court also
questioned the Withdrawal Order’s reasoning. Id. at 1182. As the
Ninth Circuit saw things, the FRA “fail[ed] to address the multiple
USCA11 Case: 24-11076 Document: 97-1 Date Filed: 08/11/2026 Page: 11 of 93

12 Opinion of the Court 24-11076
safety concerns” that the majority of commenters raised and of-
fered “no safety or economic justification for preemption” of state
minimum-crew-size rules. Id. at 1183–84.
C. The 2024 Crew Size Rule
In July 2022, the FRA published a notice of proposed rule-
making (“2022 Notice”) on a rule that would regulate crew size. 87
Fed. Reg. 45564 (July 28, 2022). During a 146-day comment period,
the FRA received around 13,500 comments from commenters.
Those commenters included labor organizations, individuals, rail-
roads, trade organizations, members of Congress, and state and lo-
cal elected officials. 89 Fed. Reg. at 25059 col.1–25075 col.2. More
than 98.5 percent of the comments supported the proposed rule.
See id. at 25059 col.2. The FRA also held a public hearing on the
rule on December 14, 2022. See id.
In April 2024, the FRA finalized the Crew Size Rule in an
order published in the Federal Register (“Final Rule”). See id. at
25052 col.1. The Crew Size Rule by default requires trains to oper-
ate with a minimum of two crewmembers onboard. 49 C.F.R. §
218.123(b). But the Rule has several exemptions.
3
It also opens
pathways, either by right or upon approval, for covered trains to

3
The Crew Size Rule does not apply to certain tourist and passenger trains, 49
C.F.R. § 218.125, load out, plant dumping, or other similar freight train oper-
ations, id. § 218.127, or train operations “controlled by a remote control oper-
ator,” id. § 218.121(c). The Rule also has special rules for one-person opera-
tions on work trains, helper service trains, and lite locomotive trains; those
rules aren’t material to this case. See id. § 218.129(a)(3)–(5).
USCA11 Case: 24-11076 Document: 97-1 Date Filed: 08/11/2026 Page: 12 of 93

24-11076 Opinion of the Court 13
begin one-person operations. How a railroad moves towards one-
person operations varies based on the size of the railroad and
whether it hauls hazardous materials.
4

The first, “notice” option is available to smaller, Class II and
Class III freight railroads.
5
These railroads may continue “legacy”
one-person operations established at least two years before the
Crew Size Rule went into effect, including continuing to transport
hazardous materials with a one-person crew. Id. § 218.129(a).
They simply must provide written notice and information to the
FRA and adopt safety-related operating rules covering three topics:
accident response, radio or wireless communication, and installa-
tion of “alerters” on the train’s controlling locomotive.
6
See id.
§ 218.129(b)–(c).
Class II and Class III railroads without legacy status may also
exercise this same “notice” option to use a one-person crew—but

4
The Crew Size Rule considers a train to carry hazardous materials based on
the type and amount of potentially dangerous materials it carries, cross-refer-
encing definitions in three other regulations. See 49 C.F.R. § 218.123(c). For
ease, we simply use the term “hazardous materials.”
5
Class I railroads include the nation’s largest freight railroads. Class II rail-
roads are mid-size, “regional” railroads, while the approximately 600 “short
line” Class III railroads are the smallest.
6
An alerter is a device installed in the cab of a train’s locomotive that monitors
the locomotive engineer’s actions. 49 C.F.R. § 229.5. If the alerter doesn’t
detect activity by the engineer over a certain period, it begins “a sequence of
audible and visual alarms” and, if the engineer does not respond, it eventually
applies a “penalty brake” to stop the train. Id.
USCA11 Case: 24-11076 Document: 97-1 Date Filed: 08/11/2026 Page: 13 of 93

14 Opinion of the Court 24-11076
only if that operation doesn’t transport hazardous materials. See id.
§ 218.129(a)(2).
The second, “special approval” option is the pathway for
other railroads to use a one-person crew. So Class I freight rail-
roads, and any railroad seeking to start transporting hazardous ma-
terials, must obtain the FRA’s approval to use a one-person crew.
These railroads must wait for sign-off from the FRA before they
may start using a one-person crew. See id. § 218.131(a)(1).
The FRA approval process is more involved. Besides every-
thing required in the “notice” option, these railroads must submit
a detailed risk assessment to the FRA. See id. §§ 218.131(b)(15),
218.133. The agency then publishes the railroad’s petition and ac-
cepts public comments for 60 days. Id. § 218.135(b)–(c). The FRA
will grant a railroad’s special-approval petition if the agency con-
cludes that the railroad’s proposal is “as safe or safer than” using a
two-person crew. See id. § 218.135(d)(2). Under the agency’s time-
table, it will normally grant or deny a petition within 120 days of
receiving it. Id. § 218.135(d)(2). A railroad that receives special ap-
proval must also submit annual reports compiling safety and oper-
ational data from its one-person crews. Id. § 218.137.
The final Crew Size Rule differs somewhat from the rule
that the 2022 Notice proposed. Four substantial changes are rele-
vant here. The initial proposal categorically prohibited using one-
person crews to transport hazardous materials, but the final version
permits this practice based on two-year “legacy” status or special
approval. See 89 Fed. Reg. at 25082 col.3–25083 col.1. The final
USCA11 Case: 24-11076 Document: 97-1 Date Filed: 08/11/2026 Page: 14 of 93

24-11076 Opinion of the Court 15
version of the Rule also allows Class II and Class III railroads that
aren’t transporting hazardous materials to begin a new one-person
operation through the “notice” path, without special approval. Id.
at 25073 col.3–25074 col.1. For railroads that need special approval,
the FRA changed the standard railroads must meet from “con-
sistent with railroad safety” to “as safe or safer” than a two-person
crew, explaining that this provided a clearer baseline. Id. at 25056
col.3. Last, the FRA provided an extended, two-year grace period
before “legacy” one-person operations would need to comply with
the Rule’s alerter requirement. See id. at 25074 col.3–25075 col.2.
The Final Rule states the FRA’s expectation that “the na-
tional, uniform standard provided in this rule [will] preempt State
laws governing crew size.” Id. at 25061 col.3.
The Crew Size Rule went into effect on June 10, 2024.
D. Petitions for Review
Six railroads and two trade groups filed petitions for review
of the Final Rule in the U.S. Courts of Appeals for the Fifth, Sev-
enth, Eighth, Eleventh, and District of Columbia Circuits. The
U.S. Judicial Panel on Multidistrict Litigation randomly selected
the Eleventh Circuit as the court in which to consolidate the peti-
tions for review, under 28 U.S.C. § 2112(a)(3).
Petitioners organized themselves into two groups. The first
group (“AAR Petitioners”) consists of five petitioners. The Associ-
ation of American Railroads (“AAR”) is a “nonprofit trade associa-
tion representing the nation’s major freight railroads, Amtrak, and
USCA11 Case: 24-11076 Document: 97-1 Date Filed: 08/11/2026 Page: 15 of 93

16 Opinion of the Court 24-11076
some smaller freight railroads and commuter authorities.” The
group includes Union Pacific Railroad Company and BNSF Rail-
way Company, which are Class I freight railroads. It also includes
Florida East Coast Railway LLC and Indiana Rail Road Company,
which are Class II freight railroads.
The second group (“Short Line Petitioners”) consists of
three petitioners. The American Short Line and Regional Railroad
Association describes itself as a “non-profit trade association repre-
senting the interests of the nation’s Class II (regional) and approxi-
mately 600 Class III (short line) railroads.” This group includes
Texas & Northern Railway Company and Nebraska Central Rail-
road Company, which are short line railroads.
Respondents are the FRA, the Administrator of the FRA, and
the U.S. Department of Transportation.
We granted a motion to intervene as a respondent by the
Transportation Division of the International Association of Sheet
Metal, Air, Rail and Transportation Workers (“SMART-TD”).
SMART-TD is a labor organization representing train employees
who are employed by all Class I railroads in the United States and
by numerous Class II and Class III railroads. SMART-TD asserts
that it “is the largest railroad union in North America.”
7

7
Besides the parties’ submissions, we also received five amicus briefs. The
Chamber of Commerce of the United States, the Ohio Chamber of Com-
merce, and the National Taxpayers Union Foundation each filed an amicus
brief supporting the Railroads. A coalition of sixteen states filed an amicus
USCA11 Case: 24-11076 Document: 97-1 Date Filed: 08/11/2026 Page: 16 of 93

24-11076 Opinion of the Court 17
II. STANDARD OF REVIEW
We have jurisdiction to review the FRA’s final actions under
its safety rulemaking authority. See 49 U.S.C. § 20114(c). When we
do so, the Administrative Procedure Act (“APA”) requires us to set
aside final agency actions that are “arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with law” or that are
“in excess of statutory jurisdiction [or] authority.” 5 U.S.C. §
706(2)(A), (2)(C).
In arbitrary-and-capricious review, a “court may not substi-
tute its own policy judgment for that of the agency.” FCC v. Prome-
theus Radio Project, 592 U.S. 414, 423 (2021). Instead, we simply en-
sure that “the agency has acted within a zone of reasonableness
and, in particular, has reasonably considered the relevant issues and
reasonably explained the decision.” Id. This standard is “exceed-
ingly deferential.” City of North Mia. v. Fed. Aviation Admin., 47 F.4th
1257, 1266 (11th Cir. 2022) (quoting Miccosukee Tribe of Indians of
Fla. v. United States, 566 F.3d 1257, 1264 (11th Cir. 2009)).
In contrast, whether an agency has exceeded its statutory au-
thority is a legal question that we decide independently. See Ins.
Mktg. Coal. Ltd. v. FCC, 127 F.4th 303, 311 (11th Cir. 2025).
III. AAR PETITIONERS’ CHALLENGE

brief supporting Respondents; the Academy of Rail Labor Attorneys and the
Brotherhood of Locomotive Engineers and Trainmen filed another.
USCA11 Case: 24-11076 Document: 97-1 Date Filed: 08/11/2026 Page: 17 of 93

18 Opinion of the Court 24-11076
AAR Petitioners challenge the Crew Size Rule on five
grounds. First, AAR Petitioners contend that the FRA exceeded its
statutory authority because the Rule is not “necessary” for safety.
Second, they argue the FRA arbitrarily finalized the Rule on the
existing record because the FRA declined to finalize a two-person
crew-size rule in 2019 and ignored commenters urging it to gather
more data before regulating. Third, AAR Petitioners assert that the
FRA unreasonably failed to consider the “substantial” labor costs
of the Rule. Fourth, they posit that the Rule conflicts with the Rail
Safety Improvement Act’s “railroad safety risk reduction pro-
gram.” Finally, AAR Petitioners urge us to conclude that the FRA
exceeded its statutory authority by taking too long to finalize the
Rule.
We address each argument in turn.
A. Statutory Authority
AAR Petitioners first argue that the Crew Size Rule falls out-
side the FRA’s statutory authority to issue safety rules “as neces-
sary.” See 49 U.S.C. § 20103(a). As AAR Petitioners see things, the
statute empowers the FRA to regulate if, and only if, its rule is “es-
sential”—and therefore “necessary”—to safety. Under this view,
having insufficient evidence that a requirement would improve
safety would leave the FRA powerless to act.
We’re not convinced. Reading the FRA’s rulemaking provi-
sion as a whole reveals a run-of-the-mill general rulemaking au-
thority. The “as necessary” phrase is a grant of discretion about
when to issue safety rules—not a stringent evidentiary bar.
USCA11 Case: 24-11076 Document: 97-1 Date Filed: 08/11/2026 Page: 18 of 93

24-11076 Opinion of the Court 19
Instead, the proper inquiry asks whether the FRA reasonably
exercised its broad rulemaking authority. AAR Petitioners for-
feited this argument, and the agency satisfied that obligation in any
event.
1. The FRA’s Authority to Issue Safety Regulations “As Necessary”
AAR Petitioners’ “as necessary” argument fundamentally
misunderstands the FRA’s rulemaking authority. We explain how
that works and why the phrase “as necessary” doesn’t set an evi-
dentiary standard.
a. The Crew Size Rule falls within the FRA’s general rulemaking power.
When assessing the scope of an agency’s statutory authority,
we look first to the statute’s text. See Oceanair of Fla., Inc. v. U.S.
Dep’t of Transp., 876 F.2d 1560, 1565 (11th Cir. 1989) (“An adminis-
trative agency . . . is a creature of Congress and has no authority
beyond that granted by Congress.”). Here, the FRA promulgated
the Crew Size Rule under the Secretary of Transportation’s general
safety rulemaking authority. See 89 Fed. Reg. at 25058 col.2 n.33
(invoking 49 U.S.C. § 20103(a) as its legal authority). That statute
says, “The Secretary of Transportation, as necessary, shall pre-
scribe regulations and issue orders for every area of railroad safety
USCA11 Case: 24-11076 Document: 97-1 Date Filed: 08/11/2026 Page: 19 of 93

20 Opinion of the Court 24-11076
supplementing laws and regulations in effect on October 16, 1970.”
49 U.S.C. § 20103(a).
8

This type of general rulemaking authority is common. A
recent analysis found that more than 10,000 sections of the Code of
Federal Regulations contain regulations that agencies issued under
these sorts of general rulemaking powers. See Tamar Katz et al.,
General Rulemaking Grants and the Federal Trade Commission, 125
C
OLUM. L. REV. 2215, 2255 (2025).
General rulemaking provisions are typically broadly
worded. Almost unavoidably, though, they contain some lan-
guage discussing a nexus between the rules they authorize and the
statutory framework the agency implements. Often, Congress
uses the word “necessary” to describe that connection. Lesko v.
United States, 161 F.4th 1352, 1362 & n.11 (Fed. Cir. 2025) (en banc)
(listing five statutes showing “Congress regularly delegates author-
ity to agencies to prescribe regulations ‘necessary’ to implement a
statutory scheme”); see also, e.g., 38 U.S.C. § 501(a) (“The Secretary
[of the Department of Veterans Affairs] has authority to prescribe
all rules and regulations which are necessary or appropriate to
carry out the laws administered by the Department . . . .”); 42
U.S.C. § 7601(a) (“The Administrator [of the Environmental Pro-
tection Agency] is authorized to prescribe such regulations as are
necessary to carry out his functions under this chapter.”).

8
Once again, the Secretary of Transportation delegated this rulemaking
power to the Federal Railroad Administrator. See 49 C.F.R. § 1.89(a).
USCA11 Case: 24-11076 Document: 97-1 Date Filed: 08/11/2026 Page: 20 of 93

24-11076 Opinion of the Court 21
Our precedent explains how we view the phrase “as neces-
sary” in an agency’s general rulemaking-authority grant. We’ve
said that “[w]hen the ‘empowering provision’ of a statute directs
the agency to regulate as necessary to carry out what Congress in-
tends, ‘the validity of a regulation promulgated thereunder will be
sustained so long as it is reasonably related to the purposes of the
enabling legislation.’” United States v. Florida, 938 F.3d 1221, 1230
(11th Cir. 2019) (quoting Mourning v. Family Publ’ns Serv., Inc., 411
U.S. 356, 369 (1973)); accord U.S. Pipe & Foundry Co. v. Webb, 595
F.2d 264, 272–73 (5th Cir. 1979).
9

AAR Petitioners don’t claim that the Crew Size Rule falls
short of this standard. Rather, they wish the standard away. But
neither of the ways they contend the standard is “doubly wrong”
holds water.
First, they suggest that we ignore the Mourning standard be-
cause Congress used the word “necessary” instead of “related to.”
But that’s also true of the cases making up this line of precedent.
See, e.g., Webb, 595 F.2d at 273 (“necessary”); Mourning, 411 U.S. at
361–2 (“necessary or proper”); Thorpe v. Hous. Auth. of City of
Durham, 393 U.S. 268, 277 (1969) (“necessary”). So that word
choice can’t distinguish these precedents.

9
In Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc), we
adopted as our own precedent the decisions that the U.S. Court of Appeals for
the Fifth Circuit handed down before October 1, 1981.
USCA11 Case: 24-11076 Document: 97-1 Date Filed: 08/11/2026 Page: 21 of 93

22 Opinion of the Court 24-11076
AAR Petitioners’ second swing misses, too. They argue that
precedents about broad authorities to “effectuate the aim of the
Act” are inapt because the FRA’s authority addresses a “single pur-
pose” of furthering railroad safety. We don’t see why this distinc-
tion matters. But in any case, it makes no difference here. Con-
gress enacted the FRA’s rulemaking authority as part of the Federal
Railroad Safety Act of 1970. Pub. L. No. 91-458, § 202(a), 84 Stat.
971, 971 (1970) (codified, as amended, at 49 U.S.C. § 20103(a)). So
effectuating the aim of the Act is the same as advancing the Act’s
single purpose: “to promote safety in all areas of railroad opera-
tions.” Id. § 101, 84 Stat. at 971.
And when we apply the proper standard—whether the reg-
ulation is reasonably related to the purposes of the enabling legis-
lation—the Crew Size Rule fits comfortably within the FRA’s au-
thority to issue safety rules. In its Final Rule, the FRA gave several
explanations why it concluded that the Crew Size Rule promotes
safety. First, removing the second crewmember’s ability to apply
hand brakes or troubleshoot problems would remove an important
check against “human factor caused accidents.” Second, it ensures
that all railroads “incorporate safety risk information before imple-
menting one-person operations, thereby reducing the risk of need-
ing to take corrective action retroactively.” Third, the FRA cred-
ited commenters who “provided first-hand accounts of close calls
and lives saved by the action of two crewmembers working as a
team” and emphasized that a single crewmember’s fatigue or med-
ical problems pose a greater safety risk when no redundancy exists
USCA11 Case: 24-11076 Document: 97-1 Date Filed: 08/11/2026 Page: 22 of 93

24-11076 Opinion of the Court 23
on board. In the face of these explanations, we cannot say that the
agency’s Crew Size Rule is not even “rationally related” to safety.
b. “As necessary” confers discretion.
Even if we don’t consider the Mourning line of precedent,
AAR Petitioners’ argument fails as a simple matter of statutory in-
terpretation.
We must read the words of a statute in their context. See
Republic of Sudan v. Harrison, 587 U.S. 1, 11 (2019). And when doing
so, we favor giving statutory text its “most natural reading.” Id.
Here, the parenthetical phrase “as necessary” plays a clear role in
the sentence, “The Secretary of Transportation, as necessary, shall
prescribe regulations and issue orders for every area of railroad
safety supplementing laws and regulations in effect on October 16,
1970.” 49 U.S.C. § 20103(a). Without it, the sentence would be a
stark, seemingly unreasonable mandate. It would read, “The Sec-
retary of Transportation shall prescribe regulations and issue or-
ders for every area of railroad safety supplementing laws and regu-
lations in effect on October 16, 1970.” Read literally, the Secretary
would have to issue rules for every area of railroad safety that pre-
existing law didn’t already address. “As necessary” tempers that
command. Put differently, the phrase increases the Secretary’s dis-
cretion about when to regulate and on what subjects.
We see nothing on the other side of the ledger. The enacted
statute gives no indication that Congress intended “as necessary”
to restrict discretion. And AAR Petitioners’ repeated proposals to
USCA11 Case: 24-11076 Document: 97-1 Date Filed: 08/11/2026 Page: 23 of 93

24 Opinion of the Court 24-11076
examine the word “necessary” in isolation clash with the axiom
that statutory text “cannot be construed in a vacuum.” Home Depot
U.S.A., Inc. v. Jackson, 587 U.S. 435, 441 (2019) (quoting Davis v.
Mich. Dept. of Treasury, 489 U.S. 803, 809 (1989)).
Driving home the conclusion, the FRA identified on-point
judicial decisions supporting our understanding of the statutory
text. AAR Petitioners did not respond to, much less undermine,
that persuasive authority.
In Sierra Club v. Jackson, for instance, the D.C. Circuit consid-
ered a similar statute addressed to the Environmental Protection
Agency (“EPA”). The statute directed that the EPA Administrator
“shall . . . take such measures . . . as necessary to prevent the con-
struction or modification of a major emitting facility” that doesn’t
satisfy certain clean-air rules. Sierra Club v. Jackson, 648 F.3d 848,
851 (D.C. Cir. 2011) (emphasis added). The court held that this
phrase made the administrator’s decision of whether or not to act
an unreviewable discretionary decision. Id. at 855–56. Noting that
there is no guidance as to what action is “necessary,” the court con-
cluded that “‘as necessary to prevent the construction or modifica-
tion of a major emitting facility’ . . . leaves it to the Administrator’s
discretion to determine what action is ‘necessary.’” Id. at 856. AAR
Petitioners offer no way to distinguish the case. Indeed, they failed
even to respond to the FRA’s citation to it.
Other parts of Title 49 similarly disfavor interpreting “as nec-
essary” to restrict safety regulation. The first section of the chapter
containing the rulemaking authority states that the “purpose of this
USCA11 Case: 24-11076 Document: 97-1 Date Filed: 08/11/2026 Page: 24 of 93

24-11076 Opinion of the Court 25
chapter is to promote safety in every area of railroad operations
and reduce railroad-related accidents and incidents.” 49 U.S.C.
§ 20101. That provision doesn’t mention countervailing consider-
ations like minimizing compliance costs, much less suggest only
“essential” safety regulations could outweigh such concerns. And
enacted declarations of policy “can be a particularly helpful guide
to selecting between permissible readings of a statutory phrase.”
Drummond v. S. Co. Servs., Inc., 177 F.4th 1076, 1099 (11th Cir. 2026)
(citing Georgia v. President of the U.S., 46 F.4th 1283, 1300 (11th Cir.
2022) (opinion of Grant, J.)).
Congress has continued to stress its overriding focus on
safety. A later statute instructed the FRA to “consider the assign-
ment and maintenance of safety as the highest priority, recognizing
the clear intent, encouragement, and dedication of Congress to the
furtherance of the highest degree of safety in railroad transporta-
tion.” 49 U.S.C. § 103(c). And the same statute requires the Federal
Railroad Administrator to have “professional experience in railroad
safety, hazardous materials safety, or other transportation safety.”
49 U.S.C. § 103(d). That requirement further reflects what one of
our sister circuits called the FRA’s “broad mandate to assign, main-
tain, and enhance safety.” 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, 656 (D.C. Cir. 2022) (quotation marks and brackets omit-
ted). Together, these statutes provide guidance about how the
FRA reasonably exercises its discretion.
USCA11 Case: 24-11076 Document: 97-1 Date Filed: 08/11/2026 Page: 25 of 93

26 Opinion of the Court 24-11076
Reading “as necessary” to confer discretion also comports
with precedent. Binding authority from the old Fifth Circuit held
that a statute stating that a district judge “‘may order additional
names . . . as necessary’ clearly contemplates allowing the District
Judge discretion to determine when and if such addition is neces-
sary.” United States v. Rodriguez, 588 F.2d 1003, 1006 n.10 (5th Cir.
1979). Other courts share the same view. A broad consensus of
our sister circuits has recognized “as necessary” or “necessary” as
affording discretion.
10

c. AAR Petitioners’ contrary arguments fail.
AAR Petitioners contend that two Supreme Court decisions
favor their contrary reading. They invoke the plurality opinion in
the Supreme Court’s 1980 “Benzene case,” Indus. Union Dep’t, AFL-
CIO v. Am. Petroleum Inst., 448 U.S. 607 (1980), and the Court’s de-
cision in Alabama Association of Realtors v. Department of Health and
Human Services, 594 U.S. 758 (2021) (per curiam) (emergency
docket). Neither case helps them.
In Benzene, the Court considered an Occupational Safety and
Health Administration (“OSHA”) rule limiting the amount of ben-
zene, a carcinogen, in nearly every U.S. workplace. OSHA issued

10
See Sanchez ex rel. D.R.-S. v. United States, 671 F.3d 86, 99 n.9 (1st Cir. 2012);
Susinno v. Work Out World Inc., 862 F.3d 346, 349 (3d Cir. 2017); United States
v. McLeod, 972 F.3d 637, 641 (4th Cir. 2020); United States v. Bowman, 602 F.2d
160, 165 (8th Cir. 1979); A Cmty. Voice v. EPA, 997 F.3d 983, 995 (9th Cir. 2021);
United States v. Solon, 596 F.3d 1206, 1210 (10th Cir. 2010); Sierra Club, 648 F.3d
at 851; Lesko, 161 F.4th at 1362 n.11.
USCA11 Case: 24-11076 Document: 97-1 Date Filed: 08/11/2026 Page: 26 of 93

24-11076 Opinion of the Court 27
the rule under a statute delegating authority to the Secretary of La-
bor to issue standards “reasonably necessary or appropriate to pro-
vide safe or healthful employment.” 29 U.S.C. § 652(8). A four-
Justice plurality reasoned that the statute required the Secretary to
make a “threshold finding” that a workplace poses “a significant
risk of harm” before issuing a regulation. Benzene, 448 U.S. at 642–
44.
Benzene is readily distinguishable. Its reasoning relies largely
on factors absent here. To support the Benzene Court’s “threshold
finding” requirement, the Court identified two important points:
“the combination of the government’s concession [in that case]
that a cost-benefit analysis was required and the explicit provisions
of the OSH Act ‘requiring the elimination of the most serious haz-
ards first.’” Nat’l Mining Ass’n v. United Steel Workers, 985 F.3d 1309,
1317 (11th Cir. 2021) (quoting Benzene, 448 U.S. at 644). We have
no similar concession here that the FRA’s rulemaking authority im-
poses a cost-benefit-analysis requirement, and unlike the OSH Act,
the FRA’s governing statute does not prioritize specific types of
regulations. The Benzene Court also “emphasized the fact that the
OSH Act had a pervasive impact on workplaces all across American
industry.” Id. at 1318. In contrast, the FRA’s authority is limited to
a single context for which Congress has repeatedly stressed the
preeminent importance of safety. See, e.g., 49 U.S.C. §§ 103(c),
20101.
Even if we adopted a Benzene-style “threshold finding” re-
quirement, it wouldn’t show that the FRA exceeded its authority.
USCA11 Case: 24-11076 Document: 97-1 Date Filed: 08/11/2026 Page: 27 of 93

28 Opinion of the Court 24-11076
The agency in Benzene made no finding that its safety standard was
“reasonably necessary or appropriate.” Benzene, 448 U.S. at 638.
Rather, the agency asserted that the statute compelled it to tightly
restrict carcinogens, even without determining what level of expo-
sure would be safe. See id. at 613. Here, though, the FRA con-
cluded the Crew Size Rule was “necessary” for safety. 89 Fed. Reg.
at 25053 cols.1–3. Whether an agency has adequate evidentiary
support for such a finding is a distinct question to assess under a
deferential standard of review, allowing agencies to “risk[] error on
the side of overprotection rather than underprotection.” Benzene,
448 U.S. at 656.
Alabama Association of Realtors is even less favorable to AAR
Petitioners’ cause. That decision held that realtors and rental prop-
erty managers had a substantial likelihood of success in showing
that the Centers for Disease Control and Prevention’s COVID-19
eviction moratorium exceeded its statutory authority. Ala. Ass’n of
Realtors, 594 U.S. at 763.
The Court’s reasoning supports our analysis here. The
Court reviewed a list of seven specific examples of measures the
Surgeon General could implement, such as “fumigation” and “dis-
infection.” Id. at 761 (quoting 42 U.S.C. § 264(a)). It considered
those examples to inform the reach of the broader rulemaking au-
thority, which allowed the Surgeon General to issue “regulations
as in his judgment are necessary to prevent the introduction, trans-
mission, or spread of communicable diseases.” Id. (quoting 42
U.S.C. § 264(a)). The Court explained that the seven examples
USCA11 Case: 24-11076 Document: 97-1 Date Filed: 08/11/2026 Page: 28 of 93

24-11076 Opinion of the Court 29
“directly relate to preventing the interstate spread of disease by
identifying, isolating, and destroying the disease itself.” Id. at 763.
Meanwhile, the CDC’s eviction moratorium “relate[d] to interstate
infection far more indirectly.” Id.
In other words, the Court assessed how closely the CDC’s
eviction moratorium related to the Act’s purpose of addressing
communicable diseases. In doing so, it considered the statute’s spe-
cific examples as guidance for how tight that relationship needed
to be. This precedent fits neatly with Mourning’s inquiry of
whether a regulation is “reasonably related to the purposes of the
enabling legislation.” 411 U.S. at 369 (quoting Thorpe, 393 U.S. at
280–81). And Alabama Association of Realtors gives no support for
reading “as necessary” as an evidentiary straitjacket.
2. Reasoned Decisionmaking
Because the Crew Size Rule falls within the FRA’s statutory
authority, the proper question is whether the Rule is a reasonable
exercise of the agency’s authority. The APA’s deferential standard
requires an agency’s regulatory action to be “reasonable and rea-
sonably explained.” Prometheus Radio, 592 U.S. at 423; see Biden v.
Texas, 597 U.S. 785, 806–07 (2022) (applying same standard for an
agency’s “exercise of discretion within [its] statutory framework”).
AAR Petitioners forfeited any general challenge that the
Crew Size Rule is an unreasonable exercise of the FRA’s regulatory
discretion. Of course, they raise some narrower arguments under
the arbitrary-and-capricious standard—we’ll address them soon.
USCA11 Case: 24-11076 Document: 97-1 Date Filed: 08/11/2026 Page: 29 of 93

30 Opinion of the Court 24-11076
Yet AAR Petitioners’ opening brief does not contend that it was
unreasonable to conclude that the Crew Size Rule is a warranted
exercise of the FRA’s power to issue safety rules “as necessary.”
That’s a curious omission.
11
Although AAR Petitioners tack on this
issue in their reply brief, that’s too late to properly present the issue
for review. See LaCourse v. PAE Worldwide Inc., 980 F.3d 1350, 1360
(11th Cir. 2020). So AAR Petitioners forfeited the argument.
But even if we could excuse AAR Petitioners’ forfeiture, we
would conclude that the FRA exercised its rulemaking discretion
reasonably.
On reply, AAR Petitioners suggest it was unreasonable for
the FRA to regulate because it has “no data suggesting that one-
person crews are less safe than two-person crews.” We see two
points AAR Petitioners might be trying to assert. But neither is
persuasive.
To the extent they imply that only robust quantitative data
can justify regulation, AAR Petitioners misunderstand the APA.
“Administrative law doesn’t constrain agencies to act only when

11
Perhaps this framing was strategic. Whether an action exceeds the “scope
of an agency’s statutory authority” is subject to independent, de novo consid-
eration by a court. Ins. Mktg. Coal. Ltd. v. FCC, 127 F.4th 303, 311 (11th Cir.
2025). In contrast, arbitrary-and-capricious and substantial-evidence review
are “exceedingly deferential.” Mendoza v. Sec’y, Dep’t of Homeland Sec., 851 F.3d
1348, 1352–53 (11th Cir. 2017) (quoting Defs. of Wildlife v. U.S. Dep’t of Navy,
733 F.3d 1106, 1115 (11th Cir. 2013)). Whatever the rationale, AAR Petitioners
forfeited a general challenge to the agency’s determination that the Crew Size
Rule was “necessary” to promote safety.
USCA11 Case: 24-11076 Document: 97-1 Date Filed: 08/11/2026 Page: 30 of 93

24-11076 Opinion of the Court 31
they have gold-standard quantitative data.” Citadel Sec. LLC v. SEC,
178 F.4th 621, 636 (11th Cir. 2026). It’s well-established that an
agency “need not—indeed cannot—base its every action upon em-
pirical data.” Id. (quoting Nasdaq Stock Mkt. LLC v. SEC, 38 F.4th
1126, 1142 (D.C. Cir. 2022)); cf. Prometheus Radio, 592 U.S. at 427
(“The APA imposes no general obligation on agencies to conduct
or commission their own empirical or statistical studies.”).
If AAR Petitioners instead used “data” as a synonym for “ev-
idence,” their argument fares no better. The FRA competently ex-
plained its reasoning that the Crew Size Rule would promote rail-
road safety and identified evidence supporting that reasoning. The
agency also explained the Rule’s measured approach in an area un-
dergoing technological shifts. Rather than blanket bans, the Rule
permits any freight train to begin using one-person crews so long
as doing so would be as safe as the status quo. The FRA pointed to
at least four reasonable grounds that justify the Rule.
First, the FRA stressed the need for caution in rolling out a
major operational shift like switching to one-person crews, given
two safety-related trends. One is the increasing average length of
Class I freight trains, rising to nearly three miles long in some in-
stances. See 89 Fed. Reg. at 25053 col.2. The FRA noted that this
trend adds “complexity and safety challenges” for operating those
trains. Id. The other is a sharp rise in the rate of human-factor-
caused accidents—a more-than-40 percent increase from 2013 to
2022, which accelerated dramatically from 2021 to 2022. Id. at
25053 col.3. The FRA concluded that departures from the status
USCA11 Case: 24-11076 Document: 97-1 Date Filed: 08/11/2026 Page: 31 of 93

32 Opinion of the Court 24-11076
quo should happen carefully, particularly because only a second
crewmember can effectively perform certain safety functions, such
as securing a train with a hand brake. See id.
Second, the FRA invoked its analysis of safety research on
the cognitive and collaborative demands on crewmembers. Id. at
25083 cols.2–3. The agency focused on five FRA-sponsored re-
search reports and one Transportation Research Board report syn-
thesizing several other studies. See 87 Fed. Reg. at 45572 col.1–
45573 col.1. Based on its assessment, the FRA identified safety con-
cerns about operating with a one-person crew that weighed in fa-
vor of the measured approach in the Final Rule. See 89 Fed. Reg.
at 25083 cols.2–3.
Third, the FRA concluded that uncertainty around the intro-
duction of a new technology, Positive Train Control (“PTC”),
12
jus-
tified its precautionary approach. The agency noted the unplanned
and planned outages of PTC systems, along with “initialization fail-
ures, cut outs, and malfunctions,” with the technology. Id. at 25978
col.2. It also emphasized that the mandate for railroads to fully im-
plement PTC technology only recently came into effect, leading to
a continued learning curve. Id.

12
PTC systems are designed to prevent “train-to-train collisions, over-speed
derailments, incursions into established work zones, and movements of trains
through switches left in the wrong position.” 87 Fed. Reg. at 45581 col.2. The
FRA concluded that “PTC systems do not completely perform all the job func-
tions of a conductor,” identifying eight safety functions they do not perform.
Id. at 45581 cols.2–3.
USCA11 Case: 24-11076 Document: 97-1 Date Filed: 08/11/2026 Page: 32 of 93

24-11076 Opinion of the Court 33
Fourth, the FRA relied on a broad set of public comments
and hearing testimony supporting the importance of a second
crewmember in railroad safety. The agency viewed these com-
ments as corroborating the concerns it drew from safety research.
Id. at 25067 col.2. For example, one former locomotive engineer
testified about an incident when he tried to use the train’s horn and
bell to warn a young child on the train track. Id. at 25062 col.3.
Those tools failed. The former engineer credited the conductor on
his train with saving the child’s life by running out onto the nose of
the train’s engine to visually warn the child. Id.
Other commenters discussed the importance of a second
crewmember as a backstop to human error, the value of jointly
troubleshooting unexpected problems, the psychological chal-
lenges of operating as a one-person crew, and the role a second
crewmember plays in assisting their fellow crew in medical emer-
gencies. Id. at 25062 col.1, 25063 col.1, 25063 col.3, 25065 col.3.
Still others emphasized the impact of multiperson crews on
local emergency responders. Multiple commenters discussed how
a second crewmember can help open railroad crossings blocked by
a stopped train, with one discussing an ambulance that would have
been blocked at the crossing for far longer without a second crew-
member. Id. at 25064 col.2–25065 col.1. A union representing fire-
fighters also noted its concern that a one-person crew poses a
higher risk of failing to relay critical information about a train’s
cargo to on-scene first responders and to perform functions like
separating train cars. Id. at 25063 col.2.
USCA11 Case: 24-11076 Document: 97-1 Date Filed: 08/11/2026 Page: 33 of 93

34 Opinion of the Court 24-11076
Overall, the FRA received numerous “first-hand accounts of
close calls and lives saved by the action of two crewmembers work-
ing as a team.” Id. at 25064 col.2. The agency explained that this
public input validated its determination that second crewmembers
“play an active role in maintaining the safe operation of the train
and safeguarding their fellow employees and the public.” Id. at
25067 col.2. Despite AAR Petitioners’ attempts to dismiss them as
“anecdotes,” public comments can provide a sound evidentiary ba-
sis for administrative action. See Citadel Sec., 178 F.4th at 636. In-
deed, the Ninth Circuit’s rebuke of the 2019 Withdrawal Order em-
phasized that “comments supporting a two-person crew rule and
. . . proffered anecdotal evidence” are evidence that the FRA ought
to consider. SMART-TD I, 988 F.3d at 1183.
On the other hand, AAR Petitioners fail to identify “coun-
tervailing evidence” that a two-person crew worsens safety or af-
firmatively showing that crew size has no effect on safety. Prome-
theus Radio, 592 U.S. at 415.
We are satisfied that the FRA “reasonably considered the rel-
evant issues and reasonably explained [its] decision” that the Crew
Size Rule is a warranted exercise of its safety rulemaking authority.
Id. at 423. We defer to an agency’s judgments on matters that im-
plicate its area of expertise, especially when making predictive
judgments. Sunshine State Bank v. Fed. Deposit Ins. Corp., 783 F.2d
1580, 1582 (11th Cir. 1986) (“The courts have uniformly recognized
that certain types of agency judgments are not susceptible to strict
‘proof’ because they involve the exercise of discretion, technical
USCA11 Case: 24-11076 Document: 97-1 Date Filed: 08/11/2026 Page: 34 of 93

24-11076 Opinion of the Court 35
expertise and informed prediction about the likely course of future
events.”). After all, it’s the agency’s role—not ours—to consider
the evidence and apply policymaking discretion. See Prometheus Ra-
dio, 592 U.S. at 423.
Exceeding our role under the APA would be particularly in-
appropriate in this case. “Where a statute is precautionary in na-
ture . . . we will not demand rigorous step-by-step proof of cause
and effect.” Miami-Dade County v. EPA, 529 F.3d 1049, 1064–65
(11th Cir. 2008) (quoting Ethyl Corp. v. EPA, 541 F.2d 1, 28 (D.C. Cir.
1976)). “[A]gencies can . . . adopt prophylactic rules to prevent po-
tential problems before they arise. An agency need not suffer the
flood before building the levee.” Stilwell v. Off. of Thrift Supervision,
569 F.3d 514, 519 (D.C. Cir. 2009) (Kavanaugh, J.).
13

Demanding statistical certainty would require the FRA to sit
and wait for a substantial number of accidents to occur with one-
person crews. Major railroad accidents are rare, but when they
happen, they can be catastrophic. Congress recognized this fact
when it directed the FRA to “consider the assignment and mainte-
nance of safety as the highest priority.” 49 U.S.C. § 103(c). We will

13
The Dissent argues that the FRA failed to link human-factor-caused acci-
dents to crew size or increasing train length, or to show why additional crew
members would ameliorate their harms. Dissent at 22–24. But as we’ve ex-
plained, the public comments did. And it’s not our role to restrain the FRA
from making reasoned (and exceedingly reasonable) predictions based on pub-
lic comment. After all, why solicit public comment if not to consider it in the
rulemaking? Plus, waiting until enough long or single crew-member trains
crash for statistical certainty defeats the preventative nature of rail regulations.

USCA11 Case: 24-11076 Document: 97-1 Date Filed: 08/11/2026 Page: 35 of 93

36 Opinion of the Court 24-11076
not undermine Congress’s command by judicially tying the
agency’s hands.
B. Sufficiency of the Record
Next, AAR Petitioners propose two narrow ways that it was
arbitrary and capricious for the FRA to regulate crew sizes based
on the existing rulemaking record. First, they contend that the
FRA reversed its prior “position” that the evidence in 2019 didn’t
warrant issuing a two-person crew-size rule. Second, they point to
the National Transportation Safety Board’s (“NTSB”) 2016 recom-
mendation that the FRA amend its accident/incident report form.
14

AAR Petitioners contend that the FRA failed to respond to com-
ments that urged it to heed this recommendation and wait to col-
lect data before regulating crew size.
On both fronts, the FRA satisfied the requirement of rea-
soned decisionmaking.
1. Change-in -Position Doctrine
AAR Petitioners argue that the Final Rule reversed the
FRA’s prior policy without a reasoned explanation. In their view,
the agency had to satisfy a heightened version of APA change-in-

14
The FRA’s “Accident/Incident Report” form already included fields for the
number of crewmembers on the train. See Nat’l Transp. Safety Bd., Railroad
Accident Report: Derailment of Amtrak Passenger Train 188, at 19 (May 17, 2016),
https://www.ntsb.gov/investigations/AccidentReports/Reports/
RAR1602.pdf [https://perma.cc/PE3R-NB2T]. The form did not ask how
many of those crewmembers were in the train’s controlling cab. See id.
USCA11 Case: 24-11076 Document: 97-1 Date Filed: 08/11/2026 Page: 36 of 93

24-11076 Opinion of the Court 37
position doctrine because the Final Rule relies on factual findings
that contradict those underlying the 2019 Withdrawal Order. Spe-
cially, AAR Petitioners assert that five statements in the 2022 No-
tice conflict with findings made in the 2019 Withdrawal Order.
This contention fails. AAR Petitioners can’t show that the
FRA reversed a prior “policy,” as is necessary for change-in-posi-
tion doctrine to apply at all, much less that a heightened standard
applies
15
And in any case, the FRA provided reasoned explanations
of why it chose to regulate crew size in 2024 even though it chose
not to in 2019.
a. The FRA did not reverse an agency policy.
Change-in-position doctrine is well established. Generally,
courts don’t apply heightened scrutiny to an agency’s reasoning
when it rescinds or changes a prior policy. See Fox, 556 U.S. at514–

15
Because change-in-position doctrine does not apply at all, we need not de-
cide the next question: whether the Crew Size Rule triggered the doctrine’s
demand for a “more detailed justification” or “reasoned explanation” when
“disregarding facts or circumstances that underlay . . . the prior policy.” Encino
Motorcars, LLC v. Navarro, 579 U.S. 211, 221–22 (2016) (quoting FCC v. Fox Tel-
evision Stations, Inc., 556 U.S. 502, 515–16 (2009)). But we note our skepticism
about AAR Petitioners’ argument that the Rule did.
AAR Petitioners’ briefs point solely to statements from the 2022 Notice as ei-
ther overlooking or clashing with findings in the 2019 Withdrawal Order. Yet
the agency gave its reasons for the new policy two years later, in the Final
Rule, which finalized the regulation. So AAR Petitioners aimed at the wrong
mark, failing to show that the agency’s “new policy rests upon factual findings
that contradict those which underlay its prior policy.” Fox, 556 U.S. at 515.
USCA11 Case: 24-11076 Document: 97-1 Date Filed: 08/11/2026 Page: 37 of 93

38 Opinion of the Court 24-11076
16. Still, the APA always requires an agency to “provide reasoned
explanation for its action.” Id. at 515. And that explanation can
look different when an agency is changing course.
We apply the change-in-position doctrine in two steps. The
first step asks “whether an agency changed existing policy.” Food
& Drug Admin. v. Wages & White Lion Invs., LLC, 604 U.S. 542, 569
(2025).
If it did, at the second step, we consider the agency’s reason-
ing. See id. When an agency changes course from a past policy, a
reasoned explanation will ordinarily (1) demand that the agency
“display awareness that it is changing position,” and (2) require it
to “show that there are good reasons for the new policy.” Fox, 556
U.S. at 515. But the agency has no need to convince a court “that
the reasons for the new policy are better than the reasons for the old
one.” Id. So the agency typically won’t need to give “a more de-
tailed justification than what would suffice for a new policy created
on a blank slate.” Id.
Sometimes, though, a heightened standard applies at this
second step. An agency must provide a “more detailed justification
. . . when, for example, its new policy rests upon factual findings
that contradict those which underlay its prior policy; or when its
prior policy has engendered serious reliance interests that must be
taken into account.” Id. In those cases, the agency needs to give a
“reasoned explanation . . . for disregarding facts and circumstances
that underlay or were engendered by the prior policy.” Id. at 516.
USCA11 Case: 24-11076 Document: 97-1 Date Filed: 08/11/2026 Page: 38 of 93

24-11076 Opinion of the Court 39
AAR Petitioners fail at the first step. They contend that the
2019 Withdrawal Order represented the FRA’s “prior policy that a
crew-size rule is not necessary for railroad safety.” But that vacated
order isn’t cognizable as an “existing policy.” White Lion, 604 U.S.
at 569.
As we’ve noted, the Ninth Circuit vacated the 2019 With-
drawal Order. SMART-TD I, 988 F.3d at 1179. We don’t see how
a judicially invalidated action leaves anything that constitutes
agency policy. At least in the context of judicial orders, a vacated
decision has no legal effect. After vacatur, a decision is “officially
gone,” “void,” and has no “legal effect whatever.” United States v.
Sigma Int’l, Inc., 300 F.3d 1278, 1280 (11th Cir. 2002) (per curiam)
(“None of the statements made . . . has any remaining force and
cannot be considered to express the view of this Court.”) Other
courts have persuasively written that we should treat vacated ad-
ministrative orders the same way. See, e.g., Action on Smoking &
Health v. C.A.B., 713 F.2d 795, 797 (D.C. Cir. 1983) (noting that, “by
vacating or rescinding the rescissions [to the agency regulations]
proposed by ER-1245, the judgment of this court had the effect of
reinstating the rules previously in force”).
16

16
The Dissent argues that “we need not decide what effect, if any, the Ninth
Circuit’s ruling had on the 2019 Withdrawal Order, because FRA has affirma-
tively conceded that its 2024 Final Order was a change in position.” But
whether the Ninth Circuit’s vacatur of the 2019 withdrawal effectively nulli-
fied the 2019 withdrawal’s position for purposes of assessing the change-in-
position doctrine raises a legal question, not a question within the FRA’s
USCA11 Case: 24-11076 Document: 97-1 Date Filed: 08/11/2026 Page: 39 of 93

40 Opinion of the Court 24-11076
In the absence of the prior order, we have little more to con-
sider than the agency’s earlier “failures to act” on crew size. Fox,
556 U.S. at 514. And departing from past agency inaction doesn’t
trigger the change-in-position doctrine. Id. at 514–16. AAR Peti-
tioners cannot avoid this black-letter law.
As the Supreme Court noted last year, courts almost exclu-
sively apply the change-in-position doctrine to positions expressed
in “formal” settings. White Lion, 604 U.S. at 570 n.5. So reasoning
that’s untethered to any valid agency action, formal or informal,
surely cannot trigger the doctrine. In short, “we do not think that
anything which can accurately be described as a change of official
agency position has occurred here.” Smiley v. Citibank (S.D.), N.A.,
517 U.S. 735, 742 (1996).
17

For these reasons, change-in-position doctrine does not ap-
ply here. So the FRA didn’t have to provide a “more detailed

unique expertise. So we do not defer to the FRA’s view of the effect of that
vacatur.
17
Despite the U.S. Chamber of Commerce’s suggestion as amicus, the
agency’s statements in the 2019 Withdrawal Order haven’t “engendered seri-
ous reliance interests that must be taken into account.” Fox, 556 U.S. at 515.
Only three years passed between the FRA’s laying out of its reasoning—which
a court of appeals held to be arbitrary and capricious—and the agency’s initia-
tion of a new rulemaking proceeding in 2022. The Supreme Court’s “change-
in-position cases have set a much higher bar, requiring, for example, ‘decades
of industry reliance on an agency’s prior policy.’” White Lion, 604 U.S. at 585
(alterations accepted) (quoting Encino Motorcars, 579 U.S. at 222).
USCA11 Case: 24-11076 Document: 97-1 Date Filed: 08/11/2026 Page: 40 of 93

24-11076 Opinion of the Court 41
justification” than ordinarily required by that doctrine, as AAR Pe-
titioners propose. Fox, 556 U.S. at 515.
b. The FRA provided a reasonable explanation for regulating crew size
now, despite declining to issue a rule in 2019.
But even if we disregarded the vacatur of the Withdrawal
Order and assumed the FRA had changed its position, the FRA rea-
sonably explained why it chose to issue a crew-size rule now. The
Final Rule stated two independent reasons why the FRA promul-
gated a crew-size regulation now, despite choosing not to regulate
in 2019. Either presents an independent, reasonable basis for
changing course.
Once again, the FRA needs to show only that it “engaged in
reasoned decisionmaking.” United Steel Workers, 985 F.3d at 1321.
This “highly deferential” standard “presumes the validity of agency
action.” Id. (quoting United Steel v. Mine Safety & Health Admin., 925
F.3d 1279, 1283 (D.C. Cir. 2019)). The FRA’s explanation easily
surpasses this bar.
As for the first reason, the FRA explained that it reassessed
prior safety research after the Ninth Circuit vacated its 2019 With-
drawal Order. 89 Fed. Reg. at 25083 col.2. The Ninth Circuit con-
cluded that the FRA’s reasoning in the Withdrawal Order was
faulty because it disregarded safety concerns that the FRA-
sponsored research we’ve discussed highlighted. SMART-TD I, 988
F.3d at 1183. It’s certainly not unreasonable to revisit an analysis
USCA11 Case: 24-11076 Document: 97-1 Date Filed: 08/11/2026 Page: 41 of 93

42 Opinion of the Court 24-11076
that a federal court of appeals held was arbitrary and capricious.
Indeed, the opposite is true.
The FRA’s other reason was the collection of trends we
mentioned before: longer trains, increased accident rates, and un-
certainties around new PTC technology. 89 Fed. Reg. at 25083
col.3. It was reasonable for the FRA to consider the sufficiency of
safety rules after noting worrying trends in accident rates and sub-
stantial operational changes that bear on safety, such as train
length. That is doubly true when we consider the primacy of safety
to the FRA’s mandate. See 49 U.S.C. § 103(c).
2. Comments Urging the FRA to Collect More Data Before Regulat-
ing
AAR Petitioners make one last attempt to find a hook for
requiring the FRA to provide robust empirical data. This time,
they look to agencies’ obligation to “consider and respond to sig-
nificant comments” in the rulemaking record. Perez v. Mortg. Bank-
ers Ass’n, 575 U.S. 92, 96 (2015). AAR Petitioners’ argument centers
on the 2016 NTSB recommendation for the FRA to update its acci-
dent report. Several commenters cited that recommendation
while urging the FRA to wait and gather empirical data before con-
sidering a crew-size rule.
Before we address AAR Petitioners’ argument, a bit of back-
ground is useful. Unlike this time, the NTSB filed a comment in
the crew-size rulemaking proceeding the FRA initiated in 2016.
The NTSB was finalizing an investigation into a 2015 Amtrak
USCA11 Case: 24-11076 Document: 97-1 Date Filed: 08/11/2026 Page: 42 of 93

24-11076 Opinion of the Court 43
derailment in Pennsylvania. Its comment asked the FRA to con-
sider the NTSB’s forthcoming views on crew size following that
investigation. See 84 Fed. Reg. at 24737 cols.1–2 n.9.
Later, the NTSB made two recommendations. It recom-
mended that the FRA modify its “Accident/Incident Report” form
to “include the number of crewmembers in the controlling cab of
the train” during an accident. See Nat’l Transp. Safety Bd., Safety
Recommendation: R-16-32 through -36, R-14-74 (Reiterated) (2016),
https://www.ntsb.gov/safety/safety-recs/recletters/R-16-032-
036.pdf [https://perma.cc/6ALG-QD3K]. And it urged the agency
to use the resulting data “to evaluate the safety adequacy of current
crew size regulations.” Id.
AAR Petitioners frame those recommendations as telling
the FRA not to regulate until after it updated the form and consid-
ered the resulting data. And they posit that three commenters’ ref-
erences to the recommendation obligated the FRA to “explain why
it rejected the NTSB’s recommendation.”
We disagree for two reasons. First, AAR Petitioners
overread the NTSB’s recommendation. The NTSB never urged
the FRA to refrain from regulating crew size without first collecting
more accident data. See id. Sure, the NTSB recommended that the
FRA use the resulting data to assess “the safety adequacy of current
crew size regulations.” Id. But as AAR Petitioners stress repeat-
edly, the federal government hadn’t regulated crew size before the
Crew Size Rule. The natural reading of the second recommenda-
tion is simply to use the data to assess whatever rules, state or
USCA11 Case: 24-11076 Document: 97-1 Date Filed: 08/11/2026 Page: 43 of 93

44 Opinion of the Court 24-11076
federal, happen to be in place.
18
So we don’t see the FRA’s Final
Rules as conflicting with this recommendation.
Second, the commenters who invoked the NTSB recom-
mendation did so as part of a generalized complaint that the evi-
dence doesn’t justify a regulation. The FRA responded fully and
reasonably to that concern, as we’ve already discussed.
More specifically, AAR Petitioners cite three comments in
the rulemaking record. One is from a member of Congress, an-
other from the Alliance for Innovation and Infrastructure (“AII”),
and a final from AAR, itself. Each of the three makes a short, pass-
ing reference to the NTSB recommendation while attacking the
evidentiary basis for a rule.
AAR Petitioners seem to believe that we must invalidate the
Rule if the FRA didn’t address the NTSB recommendation by
name. They are mistaken. Review under the APA is not a game
of “gotcha.” An agency does not need to name-check every com-
menter and each document their comments reference. Such a re-
quirement would force agencies to distort the “concise general
statement” of a rule’s basis and purpose that the APA requires, 5

18
Plus, it’s questionable whether the NTSB’s recommendation is strictly rele-
vant. It related to crewmembers “in the controlling cab”—the FRA’s form
already captured information about “how many crewmembers were on the
train.” Nat’l Transp. Safety Bd., Railroad Accident Report: Derailment of Amtrak
Passenger Train 188, at 19. But as far as we can tell, the Final Rule doesn’t re-
quire two crewmembers to be in the controlling cab. Instead, it discusses
crewmembers other than the engineer being “outside of the operating cab of
the controlling locomotive.” 49 C.F.R. § 218.123(d).
USCA11 Case: 24-11076 Document: 97-1 Date Filed: 08/11/2026 Page: 44 of 93

24-11076 Opinion of the Court 45
U.S.C. § 553(c), into an interminable laundry list. And it would
cause courts to abdicate our deferential role.
In any event, the FRA acknowledged and responded to all
three of the comments AAR Petitioners cite. See 89 Fed. Reg. at
25068 cols.1–2, 25080 col.1, 25082 col.2–25083 col.2. More im-
portantly, the FRA responded to the substance of their argument
that a sufficient evidentiary basis to regulate didn’t exist. See id. at
25080 col.1, 25083 col.2–25084 col.1. The agency explained, for ex-
ample, that a body of research “raise[d] safety concerns regarding
one-person train crews, such as the loss of a second crewmember
to notice and correct errors.” Id. at 25083 col.2. It also noted “trou-
bling industry trends” in the latest rail safety data that, coupled with
new challenges from using longer freight trains and the “enormous
and sometimes incalculable costs” rail accidents can impose, called
for “heightened caution and awareness.” Id. at 25083 col.3.
The FRA fully considered the course of action the comment-
ers proposed, too: essentially, the “no action alternative” that the
FRA evaluated as the “main alternative to the final rule.” See Joint
Pet’rs’ App’x (“JPA”) Doc. 13201 (2024 Regulatory Impact Analysis)
at 38. As the FRA saw things, that option would have allowed rail-
roads to reduce crew size “in a manner that impose[s] additional
risk to railroad employees, or the general public,” and leave the
FRA without data giving “insight into the safety protocols being
USCA11 Case: 24-11076 Document: 97-1 Date Filed: 08/11/2026 Page: 45 of 93

46 Opinion of the Court 24-11076
established.” Id. AAR Petitioners may still not be convinced. But
that doesn’t mean the agency acted arbitrarily and capriciously.
19

C. Consideration of Labor Costs
AAR Petitioners’ third argument is that the FRA failed to
consider a major category of costs, making the Final Rule arbitrary
and capricious. In their view, Michigan v. EPA, 576 U.S. 743 (2015),
compelled the FRA to analyze the Rule’s costs. AAR Petitioners
assert that the agency refused to consider the “cost” of foregone
savings for railroads who would have switched to a one-person
crew but for the Crew Size Rule. These lost savings, they continue,
are the “largest cost imposed by [the] rule.” AAR Petitioners con-
tend that this alleged oversight makes the Final Rule arbitrary and
capricious.
This argument rests on a misreading of precedent and mere
speculation that railroads would be unable to move to one-person
operations under the Crew Size Rule. So we reject it.
We start with AAR Petitioners’ overreading of Michigan v.
EPA. That decision held that, within the EPA’s statutory frame-
work, its authority to issue “appropriate and necessary” regulations

19
AAR Petitioners also contend that the FRA had to address “implicit” recom-
mendations from Congress and the Ninth Circuit to wait for more data before
regulating. We don’t see how those bodies’ actions conflict with the FRA’s
approach. Also, AAR Petitioners don’t direct us to any examples of comment-
ers raising either “implicit” recommendation. Courts are under no obligation
to scour the administrative record for comments that counsel did not cite. See
Sierra Club v. EPA, 925 F.3d 490, 496 (D.C. Cir. 2019). We will not do so here.
USCA11 Case: 24-11076 Document: 97-1 Date Filed: 08/11/2026 Page: 46 of 93

24-11076 Opinion of the Court 47
of power plants “require[d] at least some attention to cost.” Mich-
igan, 576 U.S. at 752. But the Court noted the limits of its decision.
It cautioned that it was not requiring the EPA to conduct a “formal
cost-benefit analysis in which each advantage and disadvantage is
assigned a monetary value.” Id. at 759. Instead, the Court left “the
Agency to decide . . . how to account for cost.” Id.
Michigan v. EPA is also distinguishable from this case in an
important way. The Court drew the requirement to consider cost
from Congress’s inclusion of the word “appropriate” in the EPA’s
regulatory authority, finding it significant that Congress required
the EPA to decide “whether regulation is ‘appropriate and neces-
sary,’” not just “whether regulation remains ‘necessary.’” Id. at
757.
Here, the FRA’s rulemaking authority lacks the term “ap-
propriate.” In fact, Congress removed that key word from the stat-
ute. Compare 49 U.S.C. § 20103(a) (stating that the Secretary of
Transportation “as necessary, shall prescribe regulations and issue
orders for every area of railroad safety”), with Federal Railroad
Safety Act of 1970, Pub. L. No. 91-458, § 202(a), 84 Stat. 971, 971
(“shall . . . prescribe, as necessary, appropriate rules, regulations, or-
ders, and standards for all areas of railroad safety” (emphasis
added)). So Michigan v. EPA is not instructive here.
In sum, AAR Petitioners haven’t shown that Michigan v. EPA
applies, and its requirement is flexible even when it does. So the
decision doesn’t help AAR Petitioners show that the FRA’s treat-
ment of labor costs made the Final Rule arbitrary and capricious.
USCA11 Case: 24-11076 Document: 97-1 Date Filed: 08/11/2026 Page: 47 of 93

48 Opinion of the Court 24-11076
That brings us to AAR Petitioners’ repeated assertion that
lost savings are the “largest” cost imposed by the Crew Size Rule.
Of course, repetition is not factual support. And of AAR Petition-
ers’ four arguments that the FRA overlooked significant labor costs
of the Rule, none has a basis in fact.
First, two AAR Petitioners point to their own comments
echoing that lost labor savings will be the Rule’s largest cost. But
both comments merely restate estimates of the costs of the rule
proposed in the 2016 Notice. See
Union Pacific Railroad Co., Com-
ment Letter on Train Crew Size Safety Requirements, at 33–34
(Dec. 21, 2022), Docket No. FRA-2021-0032, https://www.regula-
tions.gov/comment/FRA-2021-0032-13012
[https://perma.cc/A4WH-5U4M]; JPA Doc. 13056 at 46 (AAR).
Not only are the underlying analyses apparently outside the admin-
istrative record before us, the regulation proposed in 2016 differed
in critical ways from the Final Rule.
20
So those analyses are unhelp-
ful here.
Second, AAR Petitioners point to a study that AAR submit-
ted in 2022, raising concerns that automation may give the trucking
industry a labor-cost advantage. But that study doesn’t estimate

20
Indeed, Union Pacific premised its 2016 cost estimate on the FRA’s propos-
ing of “a permanent ban on any one-person crew on key trains carrying certain
hazardous materials,”—a feature the 2024 Crew Size Rule lacks. See Union
Pacific Railroad Co., Comment Letter on Train Crew Size Safety Require-
ments, at 33 (Dec. 21, 2022), Docket No. FRA-2021-0032, https://www.regu-
lations.gov/comment/FRA-2021-0032-13012 [https://perma.cc/A4WH-
5U4M].
USCA11 Case: 24-11076 Document: 97-1 Date Filed: 08/11/2026 Page: 48 of 93

24-11076 Opinion of the Court 49
increased labor costs for railroads resulting from the Crew Size
Rule. It simply assumes “a mandatory onboard train crew of two
individuals.” JPA Doc. 13056-9, at 9 (Burton Study). The Crew
Size Rule does not have that requirement. Plus, the Final Rule con-
siders this study and discusses concerns that costs from the Rule
would disadvantage railroads against the trucking industry. 89 Fed.
Reg. at 28080 col.3–28081 col.3.
Third, the FRA’s cost estimates dropped from 2016 to 2024.
The FRA’s high-scenario cost estimate for the 2016 Notice was
$27.7 million over 10 years,
21
but the agency estimated $6.6 million
in costs for the 2024 Final Rule. See Fed. R.R. Admin., Train Crew
Staffing: Notice of Proposed Rulemaking Regulatory Impact Analysis
(March 15, 2016), https://www.federalregister.gov/docu-
ments/2016/03/15/2016-05553/train-crew-staffing
[https://perma.cc/X42K-UAJQ] [hereinafter 2016 RIA]; JPA Doc.
13201 (2024 Regulatory Impact Analysis) at 8. AAR Petitioners tell
us that this “dramatic 75-percent drop is largely” a result of the
agency’s ignoring of labor costs this time around.
This claim is baseless. After accounting for the 2016 Notice’s
proposed exceptions, the 2016 Regulatory Impact Analysis esti-
mated railroads would face a net $2.01 million in costs over 10 years

21
The FRA produced cost estimates reflecting a three-percent and seven-per-
cent discount rate. AAR Petitioners make their arguments based on the values
reflecting the seven-percent discount rate, so we use those figures as well.
USCA11 Case: 24-11076 Document: 97-1 Date Filed: 08/11/2026 Page: 49 of 93

50 Opinion of the Court 24-11076
to employ second crewmembers. See 2016 RIA at 56 tbl.13.
22
That’s
less than 10 percent of the drop in cost estimates that AAR Petition-
ers highlight—far from the predominant driver that AAR Petition-
ers suggest it was.
Also, we note again that the final version of the Crew Size
Rule is meaningfully different from the rule proposed in 2016. The
earlier iteration contained a no-exceptions ban on one-person
crews transporting certain hazardous material. See id. at 41. So
railroads would have had to pay two-person crews for that work in
perpetuity. But as promulgated, the Rule allows railroads to use
one-person crews for hazardous materials if they can show that it’s
safe to do so. In other words, the Final Rule allows railroads to
achieve labor-cost savings that the 2016 proposal would have pre-
vented. It’s no surprise if that difference shows up as a lower cost
estimate.
That brings us to the fourth concern. Throughout their
briefing, AAR Petitioners repeatedly imply that the special ap-
proval process is a sham. They suggest that many, or perhaps
most, Class I railroads and railroads hauling hazardous materials
will be prevented from moving to a one-person crew. AAR Peti-
tioners assert that the special approval standard—“as safe or safer

22
The analysis first estimated an $8.69 million cost over 10 years when not
accounting for the exceptions in the rule the 2016 Notice proposed. 2016 RIA
at 56 tbl.13. But it then estimated that $6.68 million of that figure would be
reduced by those exceptions, leaving net labor costs of $2.01 million. See id.
USCA11 Case: 24-11076 Document: 97-1 Date Filed: 08/11/2026 Page: 50 of 93

24-11076 Opinion of the Court 51
than a two-person operation”—is “virtually impossible to satisfy in
practice.” But they don’t support that contention.
Woven throughout their briefing is the idea that the Crew
Size Rule is meant to please a political constituency, not advance
safety. AAR Petitioners suggest that, as a result, we should assume
that the FRA cynically designed the special approval process so that
the “FRA will always be able to come up with some way to deem
the data inadequate or find some risk that in its view is not suffi-
ciently mitigated” and reject the railroad’s application. We’re not
convinced. Whatever stress the presumption of regularity may be
under today, AAR Petitioners need more than speculation and in-
nuendo to overcome it. See Nat’l Parks Conservation Ass’n v. U.S.
Dep’t of the Interior, 835 F.3d 1377, 1385 (11th Cir. 2016).
For all these reasons, the FRA did not unreasonably ignore
substantial foregone labor-cost savings.
D. Alleged Conflict with the Statutory
“Risk Reduction Program”
As a fourth ground for their challenge, AAR Petitioners ar-
gue that the Crew Size Rule is contrary to law because it conflicts
with the Rail Safety Improvement Act of 2008’s “risk reduction pro-
gram.” But we see no conflict.
That statute requires certain categories of railroads to de-
velop comprehensive risk-reduction programs for railroad safety.
49 U.S.C. § 20156(a)(1), (c). Those railroads, which include all Class
I railroads, must create a risk-reduction program that
USCA11 Case: 24-11076 Document: 97-1 Date Filed: 08/11/2026 Page: 51 of 93

52 Opinion of the Court 24-11076
systematically evaluates and manages safety risks, subject to the
Secretary’s review and approval. Id. § 20156(a).
23
The scope of this
risk-reduction program is broad. The railroad must “identify and
analyze the aspects of its railroad, including operating rules and
practices, infrastructure, equipment, employee levels and sched-
ules, safety culture, management structure, employee training, and
other matters, including those not covered by railroad safety regu-
lations or other Federal regulations, that impact railroad safety.”
Id. § 20156(c).
Nothing in this statute poses an impediment to the Crew
Size Rule. First, we will not lightly infer an intent by Congress to
curtail a broad rulemaking authority, especially when the new stat-
ute does not expressly state the alleged exception or even refer to
the rulemaking authority in question. Am. Hosp. Ass’n v. NLRB, 499
U.S. 606, 613 (1991).
Second, here, the text of the statute cuts in the opposite di-
rection. It plainly contemplates overlapping coverage of railroads’
risk-reduction programs and federal safety regulations. The statute
includes a caveat that the “other matters” addressed in a railroad’s
risk-reduction plan should include subjects “not covered by rail-
road safety regulations or other Federal regulations” if they impact
railroad safety. 49 U.S.C. § 20156(c). The natural implication of
including that caveat is that a railroad “systematically evaluat[ing]

23
The Federal Railroad Administrator promulgated the implementing Risk
Reduction Program Rule in 2020. See 85 Fed. Reg. 9262 (Feb. 18, 2020) (codi-
fied at 49 C.F.R. §§ 271.1–.503).
USCA11 Case: 24-11076 Document: 97-1 Date Filed: 08/11/2026 Page: 52 of 93

24-11076 Opinion of the Court 53
railroad safety risks” will touch on many topics already covered by
federal safety regulations. Id. § 20156(a)(1).
Third, AAR Petitioners’ theory is textually untenable in an-
other way. AAR Petitioners worry that the Crew Size Rule “elim-
inates th[e] pathway” of addressing crew-size safety concerns
through a railroad’s risk-reduction program. But the statute re-
quires risk-reduction programs to address a wide range of safety
issues. Under AAR Petitioners’ logic, the Act also foreclosed regu-
lation of “operating rules and practices, infrastructure, equipment,
employee levels and schedules, safety culture, management struc-
ture, employee training, and other matters . . . that impact railroad
safety.” Id. § 20156(c). That reading is implausible. Yet AAR Peti-
tioners provide no way to prevent their theory from requiring this
result. So for this reason, too, we cannot conclude that the Act’s
risk-reduction program creates any conflict with the Crew Size
Rule.
E. The Twelve-Month Deadline
Finally, AAR Petitioners ask us to vacate the Crew Size Rule
because the FRA took more than 12 months to finalize the regula-
tion. They rely on Congress’s directive that the Secretary of Trans-
portation “shall” prescribe procedural rules including a time limit
to dispose of each proceeding “not . . . more than 12 months after
the date it begins.” Id. § 20103(b); see 49 C.F.R. § 211.13 (imple-
menting the statute).
Two panels of the D.C. Circuit have dealt capably with the
same argument, based on the same authorities, in cases involving
USCA11 Case: 24-11076 Document: 97-1 Date Filed: 08/11/2026 Page: 53 of 93

54 Opinion of the Court 24-11076
the same parties as this one. See 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, 873–74 (D.C. Cir. 2021); SMART-TD III, 40 F.4th
at 665–66. The court rejected arguments that it should vacate FRA
rules that the agency took more than a year to promulgate.
24

We think the D.C. Circuit got it right. The U.S. Supreme
Court’s decision in Barnhart v. Peabody Coal Company controls: “[I]f
a statute does not specify a consequence for noncompliance with
statutory timing provisions, the federal courts will not in the ordi-
nary course impose their own coercive sanction.” 537 U.S. 149, 159
(2003) (quoting United States v. James Daniel Good Real Prop., 510 U.S.
43, 63 (1993)).
That’s exactly the situation here. Like the D.C. Circuit, we
don’t see anything in the “statutory language” or “relevant con-
text” of the FRA’s rulemaking authority that specifies “‘conse-
quences for missing a deadline’ []or otherwise ‘suggest[s] that va-
catur should be the remedy for the agency’s failure to wrap up a
regulatory action within twelve months.’” SMART-TD III, 40 F.4th
at 665 (quoting SMART-TD II, 10 F.4th at 874). Pointing to a “shall”
in a statute or regulation is not enough to show “the grant of power

24
In those cases, AAR took the opposite position that it does now. See Assoc.
of Am. R.R. Resp. Br., at 13, 31, SMART-TD III, 40 F.4th 646 (No. 21-1049)
2021 WL 5987135 (asking the court to apply the “well-settled rule” that “the
appropriate ‘remedy for tardiness is to seek an order to compel agency action
unlawfully withheld or unreasonably delayed,’” not to vacate the eventual
rule (quoting SMART-TD II, 10 F.4th at 874)).
USCA11 Case: 24-11076 Document: 97-1 Date Filed: 08/11/2026 Page: 54 of 93

24-11076 Opinion of the Court 55
can sensibly be read to expire when the job is supposed to be done.”
Barnhart, 537 U.S. at 161.
Nor can AAR Petitioners distinguish Barnhart by noting that
the FRA has the same statutory time limit in a procedural regula-
tion. True, agencies are bound by their own regulations. Cf. United
States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 267 (1954). But the
question is what the consequence is when an agency fails to meet
a regulatory deadline. And AAR Petitioners don’t explain why a
regulatory time limit would put an expiration date on the FRA’s
rulemaking authority.
In fact, the U.S. Supreme Court has applied Barnhart to time
limits imposed in court-made procedural rules. See McIntosh v.
United States, 601 U.S. 330, 339 (2024) (addressing Fed. R. Crim. P.
32(b)(2)(B)). And we don’t see the Court’s reasoning as suggesting
we should treat agency-made procedural rules differently.
25
Just like
in McIntosh, here, the FRA’s regulatory deadline “does not specify
a consequence for noncompliance with its timing provisions.” Id.
at 341 (citation omitted). So we won’t interpret the FRA’s regula-
tion as a “rare” “jurisdictional deadline” that leaves an entity “com-
pletely powerless to take any relevant action.” Id. at 337.
We instead follow McIntosh’s lead in interpreting the FRA’s
deadline as a “time-related directive” that “functions ‘as a spur to

25
The statutory deadline compelled the FRA to create its regulatory deadline.
See 49 U.S.C. § 20103(b). It would be strange to assess the FRA’s adherence to
its regulation more strictly than its compliance with Congress’s command.
USCA11 Case: 24-11076 Document: 97-1 Date Filed: 08/11/2026 Page: 55 of 93

56 Opinion of the Court 24-11076
prompt action, not as a bar to tardy completion of . . . business.’”
Id. at 340 (quoting Barnhart, 537 U.S. at 172). A statute providing
“a short period for rulemaking . . . indicates that the agency should
move with dispatch.” SMART-TD II, 10 F.4th at 874.
If AAR Petitioners wished for a faster rulemaking proceed-
ing, they could have sought the “ordinary remedy for tardiness”—
“an order to ‘compel agency action unlawfully withheld or unrea-
sonably delayed.’” Id. (quoting 5 U.S.C. § 706(1)). They did not
seek one. They can’t now refashion Congress’s direction to work
quickly into a message of “better never than late.”
26

IV. SHORT LINE PETITIONERS’ CHALLENGE
Short Line Petitioners challenge the Final Rule on two
grounds of their own.
27
We address the flaws Short Line Petition-
ers identify in the Crew Size Rule’s legacy exception, then evaluate
their complaints about the Rule’s alerter requirement.

26
AAR Petitioners don’t argue that the FRA acted arbitrarily and capriciously
by failing to follow its own regulation. Cf. Simmons v. Block, 782 F.2d 1545,
1550 (11th Cir. 1986). In any event, we don’t see how FRA’s extensions of
comment periods—which AAR Petitioners took full advantage of—or taking
more time to consider those comments prejudiced AAR Petitioners. Cf. Port
of Jack. Mar. Ad Hoc Comm., Inc. v. U.S. Coast Guard, 788 F.2d 705, 708 (11th Cir.
1986) (articulating a “framework governing review of an agency’s deviation
from its own regulations” emphasizing substantial prejudice). If anything,
rushing to finalize a rule in 12 months seems likelier to prejudice regulated
parties.
27
Short Line Petitioners also adopted by reference AAR Petitioners’ argu-
ments on the first and third issues we’ve already reviewed.
USCA11 Case: 24-11076 Document: 97-1 Date Filed: 08/11/2026 Page: 56 of 93

24-11076 Opinion of the Court 57
A. The Legacy Exception
Short Line Petitioners target three aspects of the Crew Size
Rule’s exception for “legacy” one-person crew operations: the two-
year threshold for legacy status, alleged ambiguity about legacy sta-
tus after a change in ownership, and the special-approval process
for railroads that want to start carrying hazardous materials with a
one-person crew.
We deal with the first two grounds together—Short Line Pe-
titioners forfeited both—before turning to the third.
1. Forfeited Grounds
As for the first ground, Short Line Petitioners contend that
the FRA didn’t explain why it set the threshold for legacy status at
two years. But Short Line Petitioners didn’t identify any comment
or testimony raising this issue to the agency during the rulemaking
proceeding. So they’ve forfeited a challenge on this ground. See
Advocs. for Highway & Auto Safety v. Fed. Motor Carrier Safety Admin.,
429 F.3d 1136, 1150 (D.C. Cir. 2005) (“[A] party will normally forfeit
an opportunity to challenge an agency rulemaking on a ground
that was not first presented to the agency for its initial considera-
tion.”). Indeed, Short Line Petitioners all but concede on reply that
they’ve forfeited this point.
With the second ground, Short Line Petitioners argue that
the Crew Size Rule is “arbitrarily vague” about whether a change
in ownership will end a one-person operation’s legacy status. The
Rule confers legacy status on a “one-person train crew operation
USCA11 Case: 24-11076 Document: 97-1 Date Filed: 08/11/2026 Page: 57 of 93

58 Opinion of the Court 24-11076
that has been established for at least two years” before the Rule’s
effective date. 49 C.F.R. § 129(a)(1). It’s not clear enough, Short
Line Petitioners urge, whether the FRA would consider a railroad
the same “operation” after it’s acquired by a new holding company.
Here again, Short Line Petitioners fail to show that the FRA
received comments or testimony raising this issue. And the rele-
vant language was substantively identical in the 2022 Notice and
the 2024 Final Rule. See 89 Fed. Reg. at 25110 col.1 (finalizing 49
U.S.C. § 218.129(a)(1)); 87 Fed. Reg. at 45618 col.2 (proposing
equivalent language in the initial iteration of Section 218.131(a)).
So they’ve forfeited this ground, as well.
28

28
We aren’t persuaded by Short Line Petitioners’ claim that they could not
have known of this supposed ambiguity during the rulemaking. They point
to a guidance document that the FRA released in May 2024. See Office of R.R.
Safety, Fed. R.R. Admin., Compliance Guide for Train Crew Size Safety Require-
ments, at 17 (2024), https://railroads.dot.gov/sites/fra.dot.gov/files/2024-
05/050124%20Compliance%20Guide%20Train%20Crew%20Size%20
Safety%20Requirements.pdf [https://perma.cc/99CG-RCFK] [hereinafter
Compliance Guide]. But that document simply restates what is plain from the
Final Rule. The Crew Size Rule’s requirements and exceptions apply to a par-
ticular railroad. See 49 C.F.R. §§ 218.123(a), 218.129(a), 218.131(a)(1). So the
agency didn’t do anything new by stating that an acquiring owner “should not
presume” that the old owner’s exception or special approval will transfer to
the new owner of a one-person operation. Compliance Guide, supra, at 17.
USCA11 Case: 24-11076 Document: 97-1 Date Filed: 08/11/2026 Page: 58 of 93

24-11076 Opinion of the Court 59
2. Special Approval for Trains Carrying Hazardous Materials
The legacy exception is also arbitrary and capricious, Short
Line Petitioners propose, because of how it handles operations
transporting hazardous materials.
As we’ve mentioned, the Final Rule eliminated the 2022 No-
tice’s categorical ban on using one-person crews to transport haz-
ardous materials. See 89 Fed. Reg. at 25082 col.3–25083 col.1. The
final version of the Crew Size Rule allows any freight railroad to
move towards one-person crews for hazardous materials. But
Class II and III railroads face a substantial difference based on
whether they started carrying hazardous materials with a one-per-
son crew at least two years before the Rule went into effect.
Class II and III railroads with more than a two-year safety
record may start using a one-person crew through the simpler “no-
tice” option. But a railroad with less than two years transporting
hazardous materials with a one-person crew—even if its one-per-
son operation has transported non–hazardous materials for many
years—must go through the more onerous special-approval path.
Until they submit their petition, including the robust risk assess-
ment and annual reports, and receive FRA approval, these railroads
cannot haul hazardous materials with a one-person crew.
In effect, two types of legacy status exist for Class II and Class
III freight railroads: “standard legacy” and “hazmat legacy.” A
“standard legacy” operation could continue to haul non-hazardous
materials but would need to use the special-approval process to
USCA11 Case: 24-11076 Document: 97-1 Date Filed: 08/11/2026 Page: 59 of 93

60 Opinion of the Court 24-11076
start carrying hazardous materials.
29
In Short Line Petitioners’
framing, requiring a “standard legacy” railroad to prepare a risk as-
sessment and special-approval petition is an arbitrary burden.
They assert that doing so “serves no safety purpose.”
But the FRA considered the relevant factors and reasonably
explained its decision—all the APA requires. To start with, it’s
worth remembering how this disparity came about. In response to
commenters, including the American Short Line and Regional Rail-
road Association (“Association”), the FRA removed the categorical
prohibition on using one-person crews to haul hazardous materi-
als. See 89 Fed. Reg. at 25070 cols.1–2, 25074 cols.1–2, 25082 cols.2–
3. And while giving Short Line Petitioners much of what they
sought, the FRA described its rationale for adopting a more careful
approach with hazardous materials.
The Final Rule repeatedly notes the greater safety risks that
hazardous materials pose. It explains that transporting hazardous
materials “creates the potential for a greater negative conse-
quence” compared to other cargo by “rais[ing] various specific

29
Short Line Petitioners worry that a “standard legacy” operation would lose
legacy status if the railroad is later required to carry hazardous materials under
common-carriage rules. But they don’t give any reason to think that the leg-
acy exception would work this way—and we don’t see anything in the Crew
Size Rule to suggest it would. Unless the railroad obtained special approval, it
would need to use a two-person crew to transport the hazardous materials.
We don’t see why doing so would have any bearing on the status of a railroad’s
“legacy one-person train crew freight operation.” 49 C.F.R. § 218.129(a)(1) (em-
phasis added).
USCA11 Case: 24-11076 Document: 97-1 Date Filed: 08/11/2026 Page: 60 of 93

24-11076 Opinion of the Court 61
safety hazards, such as the potential for an accidental or non-acci-
dental release of a hazardous material.” Id. at 25055 cols.1–2. The
Final Rule also relies on multiple federal regulators’ determination
that the Rule’s defined set of hazardous materials “present[s] the
greatest safety and security risks.” Id. at 25074 col.2. The FRA
flagged that these hazards “would typically create additional tasks
for a train crew” responding to a developing safety risk or attempt-
ing to mitigate an accident. Id. at 25055 col.1. It is rational for an
agency to more carefully regulate the handling of materials that
pose a greater safety risk.
The agency also set out the reasons it requires either a mul-
tiyear safety record or a risk assessment for one-person crews to
transport hazardous materials.
As for the safety record, dating back to the 2022 Notice, the
FRA expressed that at least two years of data would provide “an
accident/incident safety record of a reasonable length on which
[the] FRA could base any determination of the level of safety the
operation provides.” 87 Fed. Reg. at 45595 col.2. In the Final Rule,
the agency also explained its comfort with allowing “hazmat leg-
acy” operations to continue because of the Rule’s imposition of
new minimum safety requirements, such as mandating installation
of alerters. 89 Fed. Reg. at 25074 col.1. And the FRA emphasized
its commitment to “closely monitor this legacy exception and . . .
scrutinize data or observations showing that the legacy operations
may not be as safe as currently described.” Id.
USCA11 Case: 24-11076 Document: 97-1 Date Filed: 08/11/2026 Page: 61 of 93

62 Opinion of the Court 24-11076
The FRA also reasonably explained why it requires a risk as-
sessment for railroads without a multiyear safety record. As the
agency described it, the purpose of the risk assessment is “eval-
uat[ing] risk in an objective manner” through a process to “system-
atically identify hazards, assess the degree of risk associated with
those hazards, and . . . identify and implement measures to mini-
mize or mitigate the risks to an acceptable level.” Id. at 25055
cols.1–2. Removing a second crewmember, the agency noted,
could leave the remaining crewmember vulnerable in cases of ac-
cidents or derailments. Id. at 25053 col.3 n.5. And the FRA cannot
assess the railroad’s proposed measures to compensate for those
risks unless the agency can review an objective analysis. Id. at
25055 col.2.
We consider this decisionmaking to be reasonable. Short
Line Petitioners quibble once more with the precise length of time
for “hazmat legacy” status—why two years of data rather than one-
and-a- half or three? But regulation often involves drawing this kind
of line. See Mayo Found. for Med. Educ. & Rsch. v. United States, 562
U.S. 44, 59 (2011). Agencies have “‘wide discretion’ in making line-
drawing decisions” like these. Nat’l Shooting Sports Found., Inc. v.
Jones, 716 F.3d 200, 214 (D.C. Cir. 2013) (quoting WorldCom, Inc. v.
FCC, 238 F.3d 449, 462 (D.C. Cir. 2001)). We will not disturb this
sort of judgment call unless a petitioner shows the agency’s lines
“are patently unreasonable, having no relationship to the underly-
ing regulatory problem.” Id. at 215 (quoting ExxonMobil Gas Mktg.
Co. v. FERC, 297 F.3d 1071, 1085 (D.C. Cir. 2002)). Short Line Peti-
tioners have not carried this burden.
USCA11 Case: 24-11076 Document: 97-1 Date Filed: 08/11/2026 Page: 62 of 93

24-11076 Opinion of the Court 63
B. Expanding the Alerter Requirement
In their final argument, Short Line Petitioners take aim at
the Crew Size Rule’s alerter requirement. Under the Rule, a train
with a one-person crew must have a functioning alerter—the de-
vice that will activate warning alarms and eventually apply a “pen-
alty brake” to stop the train if the engineer is non-responsive—in
its controlling locomotive. 49 C.F.R. §§ 218.129(c)(3), 229.5.
Short Line Petitioners contend that the FRA ran afoul of the
change-in-position doctrine in enacting this requirement. Before
the Final Rule, they emphasize, the FRA required alerters only in
locomotives that operate at speeds above 25 miles per hour. Id. §
229.140(a). But the Crew Size Rule’s alerter requirement applies to
all freight trains with a one-person crew, even if they stay under 25
miles per hour. See id. § 218.129(c)(3).
As we discussed, to depart from a prior policy, the FRA must
(1) “display awareness that it is changing position,” and (2) “show
that there are good reasons for the new policy.” Fox, 556 U.S. at
515. The agency satisfies that standard.
The Final Rule showed awareness that the Crew Size Rule
would require railroads that aren’t covered by an existing alerter
requirement to add alerters. See 89 Fed. Reg. at 25075 col.1. Indeed,
the agency thoroughly addressed the American Short Line and Re-
gional Railroad Association’s comments criticizing the addition of
an alerter requirement for slower trains. See Id. at 25075 cols.1–2
& n.194.
USCA11 Case: 24-11076 Document: 97-1 Date Filed: 08/11/2026 Page: 63 of 93

64 Opinion of the Court 24-11076
Short Line Petitioners seek to portray this response as the
FRA’s denial that it was changing its policy. They focus on the Fi-
nal Rule’s statement that the FRA was “not issuing conflicting
statements” relative to its 2012 order finalizing the earlier alerter
rule. Id. at 25075 col.1.
But the agency was making an uncontroversial point. There
is no inconsistency between stating that, all else equal, (a) slower
trains pose a lower risk of injury and (b) trains without a second
crewmember present a higher risk if there is no tool like an alerter
to stop the train if the single crewmember becomes unresponsive.
Besides, this argument mistakes our role under the APA. Short
Line Petitioners ask us to search the Federal Register for a phrase
that might look questionable in isolation when it comes to the
FRA’s determination that “the agency is not issuing conflicting
statements” about the alerter requirement. Id. But this is not a
scavenger hunt. Rather, we conduct our deferential review with
an eye towards the reasonableness of an agency’s action as a whole.
The FRA also provided good reasons for its new policy. The
Final Rule explains the obvious safety benefits of equipping trains
with an alerter if they are operated by a one-person crew. Without
a backup like an alerter, “if a one-person train crew becomes inca-
pacitated while the train is moving, the train would continue to
operate down the track out of control without another crewmem-
ber on-board who could apply the emergency brake.” Id. at 25054
col.2.
USCA11 Case: 24-11076 Document: 97-1 Date Filed: 08/11/2026 Page: 64 of 93

24-11076 Opinion of the Court 65
The FRA thoroughly considered the cost to install alerters
in locomotives for slower trains. See JPA Doc. 13201 (2024 Regula-
tory Impact Analysis) at 16–18. In response to cost concerns, the
FRA extended the alerter requirement’s compliance deadline for
many Class II and Class III trains in the final version of the rule. See
89 Fed. Reg. at 25074 col.3–25075 col.2.
Finally, the agency explained that alerters are “a necessary
precaution to prevent the potential for catastrophic harm due to an
uncontrolled train movement.” Id. at 25075 col.1. Requiring them
would therefore “reduce the likelihood of at least one type of fore-
seeable accident that is more likely to occur with a one-person train
crew,” by stopping trains with a physically unresponsive locomo-
tive engineer. Id. at 25052 col.3. These explanations reflect that
the agency engaged in reasoned decisionmaking.
V. CONCLUSION
For the reasons we have discussed, we DENY the petitions
for review of the Final Rule.
USCA11 Case: 24-11076 Document: 97-1 Date Filed: 08/11/2026 Page: 65 of 93

24-11076 BRANCH, J., Dissenting 1

B
RANCH, Circuit Judge, Dissenting:
In 2024, the Federal Railroad Administration (“FRA”) issued
a rule requiring trains to operate with a minimum of two crew
members on board, subject to exceptions, claiming that such a re-
quirement would enhance the safety of railroad operations. But
FRA had considered a similar requirement just a few years prior in
2019 and concluded that research and other evidence did not sup-
port a minimum-crew-size rule. Now, FRA claims that, on recon-
sideration, it was wrong the first time around. But it relies on sub-
stantially the same data available to it in 2019 and offers no new
research or circumstances that reasonably connect railroad safety
and train crew sizes. Plus, its cost-benefit analysis failed to account
for the labor costs railroads would incur to comply with the rule.
For these reasons, I agree with the railroads bringing this challenge
that the rule is arbitrary and capricious and should be vacated. I
therefore respectfully dissent.
VI. Background
A. Statutory and regulatory background
The Federal Rail Safety Act of 1970 provides, in relevant
part, that “[t]he Secretary of Transportation, as necessary, shall pre-
scribe regulations and issue orders for every area of railroad safety
supplementing laws and regulations in effect on October 16, 1970.”
49 U.S.C. § 20103(b). “In prescribing regulations and issuing orders
under this section, the Secretary shall consider existing relevant
safety information and standards.” Id. § 20103(c). The Secretary of
USCA11 Case: 24-11076 Document: 97-1 Date Filed: 08/11/2026 Page: 66 of 93

2 BRANCH, J., Dissenting 24-11076
Transportation has delegated his rulemaking authority to the Ad-
ministrator of FRA, see 49 C.F.R. § 1.89(a), and Congress has
charged FRA with “carry[ing] out all railroad safety laws of the
United States,” 49 U.S.C. § 103(b). “In carrying out its duties, [FRA]
shall consider the assignment and maintenance of safety as the
highest priority, recognizing the clear intent, encouragement, and
dedication of Congress to the furtherance of the highest degree of
safety in railroad transportation.” Id. § 103(c).
In furtherance of this mandate, in 2024, FRA issued a Final
Rule mandating that railroads operate with a minimum of two
crew members, subject to exceptions. Train Crew Safety Require-
ments, 89 Fed. Reg. 25052 (Apr. 9, 2024) (“2024 Final Rule”). While
this 2024 Final Rule was the first time FRA had promulgated such
a requirement, the relevant history of the Rule goes back to 2016.
1. The 2016–2019 rulemaking attempt
In 2016, FRA issued a Notice of Proposed Rulemaking
(NPRM) proposing “a minimum requirement of two crewmem-
bers . . . for all railroad operations, with exceptions proposed for
those operations that FRA believe[d] d[id] not pose significant
safety risks to railroad employees, the general public, and the envi-
ronment by using fewer than two-person crews.” Train Crew Staff-
ing, 81 Fed. Reg. 13918, 13918 (Mar. 15, 2016) (“2016 NPRM”). The
rule also sought to “establish minimum requirements for the roles
and responsibilities of the second train crewmember on a moving
train.” Id.
USCA11 Case: 24-11076 Document: 97-1 Date Filed: 08/11/2026 Page: 67 of 93

24-11076 BRANCH, J., Dissenting 3
In proposing the rule in 2016, FRA acknowledged that it
lacked “reliable or conclusive statistical data to suggest whether
one-person crew operations [were] generally safer or less safe than
multiple-person crew operations.” Id. at 13919. Indeed, the agency
had not “collect[ed] sufficient data related to the size of a train
crew” to make a conclusion about whether crew size affected
safety, and available “accident reports and investigations [did not]
generally address the size of a crew” as it related to safety. Id.
Instead, FRA relied primarily on two derailments—one in
Quebec and the other in North Dakota—and six research reports
to justify the 2016 NPRM. Id. at 13921–30. FRA determined that
the Quebec derailment supported imposing a two-person-crew re-
quirement even though the Canadian agency tasked with investi-
gating the derailment “found that it could not be concluded that a
one-person crew contributed to the accident.” Id. at 13922. FRA
also determined that the North Dakota derailment supported its
proposed rule even though that derailment involved a two-train
collision in which one train was manned by two crew members
and the other by three. Id. at 13923–24. FRA concluded that be-
cause the multi-person crew on one of the trains in North Dakota
was able to help with the post-accident response, and a one-person
crew could not have helped as much, a two-person-crew require-
ment was warranted. See id.
FRA claimed that the six research reports also justified its
proposed rule, even though none of them stated with certainty or
data that two-person crews were safer than one-person crews.
USCA11 Case: 24-11076 Document: 97-1 Date Filed: 08/11/2026 Page: 68 of 93

4 BRANCH, J., Dissenting 24-11076
Instead, the reports asserted generally that two-person crews were
preferable because (1) train engineers and conductors “operate as a
joint cognitive system,” id. at 13925; (2) a passenger train conduc-
tor needs a lot of “knowledge, skills, abilities, and other character-
istics” to do his job well, id. at 13926; (3) railroad employees expe-
rience fatigue on the job, id.; (4) conductors might experience more
“cognitive demands” with the “introduction of new train control
technologies,” id.; (5) there was uncertainty regarding operations
due to new technology and conductors’ responsibility to adapt
thereto, id. at 13928–29; and (6) put simply, teamwork was im-
portant, id. at 13929–30.
FRA conducted a regulatory impact analysis, which it issued
with the 2016 NPRM. In it, FRA conducted a thorough cost-benefit
analysis to determine the costs of complying with the proposed
rule. It concluded that such costs could be as high as $27.7 million
over 10 years. See 2016 NPRM, 81 Fed. Reg. at 13919. Among the
various costs FRA accounted for, it included costs “result[ing] from
additional crew members on the trains that are currently operating
with a one-person crew and from the delay or prevention of insti-
tuting new one-person crew operations in the future” (emphasis
added).
With that background, the 2016 NPRM asked for public
comment. However, in 2019 FRA withdrew the NPRM, “find[ing]
that no regulation of train crew staffing [was] necessary or appro-
priate at [that] time.” Train Crew Staffing, 84 Fed. Reg. 24735, 24737
(May 29, 2019) (“2019 Withdrawal Order”). According to FRA,
USCA11 Case: 24-11076 Document: 97-1 Date Filed: 08/11/2026 Page: 69 of 93

24-11076 BRANCH, J., Dissenting 5
“despite studying this issue in-depth and performing extensive out-
reach to industry stakeholders and the general public, FRA’s state-
ment in the [2016 NPRM] that it ‘cannot provide reliable or con-
clusive statistical data to suggest whether one-person crew opera-
tions are generally safer or less safe than multiple-person crew op-
erations’ still holds true today.” Id.
The Withdrawal Order explained why the purported evi-
dence it relied on in the 2016 NPRM did not support a two-person
requirement. First, the Quebec and North Dakota derailments:
FRA pointed out that any connections between the derailment and
the one-person crews were “tangential at best and [did] not provide
a sufficient basis for FRA regulation of train crew staffing require-
ments.” Id. at 24738. The Quebec derailment occurred because of
the crew member’s failure to follow rules, not because he did not
have another crew member assisting him. Id. And as for the North
Dakota derailment, FRA concluded that the same type of post-ac-
cident response could have been conducted if the relevant train had
one crew member and implemented a “well-planned, post-accident
protocol.” Id. The 2019 Withdrawal Order reiterated its statement
from the 2016 NPRM that “FRA [did] not have information that
suggest[ed] that there ha[d] been any previous accidents involving
one-person crew operations that could have been avoided by add-
ing a second crewmember.” Id. at 24738.
Addressing the six research reports, FRA pointed out that
“[w]hile the[] reports identif[ied] safety issues that railroads should
consider when evaluating any reduction in the number of train
USCA11 Case: 24-11076 Document: 97-1 Date Filed: 08/11/2026 Page: 70 of 93

6 BRANCH, J., Dissenting 24-11076
crewmembers or a shift in responsibilities among those crewmem-
bers, the reports [did] not indicate that one-person crew operations
[were] less safe and therefore [did] not form a sufficient basis for a
final rule on crew staffing.” Id. at 24740. And research into the
issue that FRA had commissioned in 2013 was ultimately “unable
to reach consensus on any recommendation or identify conclusive,
statistical data to suggest whether there is a safety benefit or detri-
ment from [two-person crews].” Id. at 24736.
Finally, FRA concluded that a two-person-crew rule would
“unnecessarily impede the future of rail innovation and automa-
tion.” Id. at 24740 (capitalization omitted). Automation, FRA ex-
plained, would reduce human-caused accidents. Id. For all these
reasons, FRA refused to “depart[] from [its] long-standing regula-
tory approach of not endorsing any particular staffing arrange-
ment.” Id. The Order also stated that “FRA intend[ed] to nega-
tively preempt any state laws concerning” crew sizes on trains. Id.
at 24741.
2. The vacatur of the 2019 Withdrawal Order
In 2021, in response to a challenge to the 2019 Withdrawal
Order, the Ninth Circuit vacated the Order, finding that the Or-
der’s apparent attempt to preempt any state efforts to impose a
two-person-crew rule was unlawful. See Transp. Div. of the Int’l
Ass’n of Sheet, Metal, Air, Rail, & Transp. Workers v. Fed. R.R. Admin.,
988 F.3d 1170 (9th Cir. 2021). The Ninth Circuit determined that
the Order’s statement about preemption of state laws attempted to
USCA11 Case: 24-11076 Document: 97-1 Date Filed: 08/11/2026 Page: 71 of 93

24-11076 BRANCH, J., Dissenting 7
“authorize nationwide one-person train crews and to bar any con-
trary state regulations.” Id. at 1182.
The court held that while “[t]here [was] no doubt that the
FRA could withdraw the [2016 NPRM]” as it related to requiring
two crew members on trains, the “lack of data [did] not support the
promulgation” of what was effectively a “one-person train crew
rule and the preemption of state safety laws.” Id. at 1178, 1182.
The court therefore vacated the 2019 Withdrawal Order’s preemp-
tion mandate as arbitrary and capricious. See id. at 1182–84. In so
holding, the Ninth Circuit pointed to the lack of “reliable or con-
clusive statistical data to suggest whether one-person crew opera-
tions are generally safer or less safe than multiple-person crew op-
erations.” Id. at 1182 (quotations omitted). According to the court,
that lack of evidence—as well as a failure to address potential safety
concerns involving one-person crews—made the “promulgation of
a one-person train crew rule” arbitrary and capricious, under the
Administrative Procedure Act (“APA”). Id. at 1183. But, notably,
while the Ninth Circuit held that there was not enough evidence
to mandate a one-person crew rule and preempt contrary state
laws, it did not hold or suggest that a two-person-crew rule was
warranted. See id. at 1182–84.
3. The 2022–2024 rulemaking
In July 2022, FRA issued a new NPRM, again proposing “[a]
minimum requirement of two crewmembers . . . for all railroad
operations, with exceptions proposed for those operations that do
not pose significant safety risks to railroad employees, the public,
USCA11 Case: 24-11076 Document: 97-1 Date Filed: 08/11/2026 Page: 72 of 93

8 BRANCH, J., Dissenting 24-11076
or the environment.” See Train Crew Size Safety Requirements, 87
Fed. Reg. 45564, 45564 (July 28, 2022) (“2022 NPRM”). A 146-day
public comment period followed, during which FRA received ap-
proximately 13,576 comments. 2024 Final Rule, 89 Fed. Reg. at
25059. In 2024, FRA issued the final rule we now review. See id. at
25052.
“The final rule establishes minimum crew safety size stand-
ards for all trains, including a risk assessment requirement to eval-
uate hazards and ensure risk mitigation for those railroads looking
to initiate one-person train crew operations in the most complex
environments nationwide.” Id. at 25052. According to FRA, the
rule “will reduce the likelihood of future accidents proactively.” Id.
The Final Rule provides different restrictions based on
whether a railroad is classified as Class I, Class II, or Class III. Ac-
cording to FRA, Class I railroads are generally “the largest railroads
operating in the United States”; Class II railroads are “regional rail-
roads,” and Class III railroads are “shortline” railroads.
Specifically, the Final Rule includes the following provisions.
As a baseline, all covered trains “shall be assigned a minimum of
two crewmembers.” 49 C.F.R. § 218.123(b). However, some
smaller railroads are automatically excepted from the two-person
rule: If a Class II or Class III railroad has a “one-person train crew
freight operation that has been established for at least two years
before June 10, 2024,” that railroad “may continue to operate with
a one-person train crew, including continuing to transport hazard-
ous materials” identified elsewhere in FRA’s regulations. Id.
USCA11 Case: 24-11076 Document: 97-1 Date Filed: 08/11/2026 Page: 73 of 93

24-11076 BRANCH, J., Dissenting 9
§ 218.129(a)(1). A Class II or Class III railroad may also switch to a
one-person crew for the first time if it does not carry hazardous
materials. Id. § 218.129(a)(2); see 2024 Final Rule, 89 Fed. Reg. at
25056 (stating that Class II or Class III railroads may “initiat[e] a
new, non-legacy, one-person train crew freight operation not trans-
porting hazardous materials” without petitioning FRA for special
approval).
However, the Final Rule lays out significant compliance re-
quirements for railroads seeking to proceed under these excep-
tions: they must “provide FRA with written notice” of their intent
to continue operating with a one-person crew, 49 C.F.R.
§ 218.129(a)(1)(i)(A), (b); “[a]dopt and comply with an operating
rule” that provides for mitigation measures and communication
protocols “that provide a level of safety that is as safe or safer than
a two-person train crew operation,” id. § 218.129(c)(1), (2); see also
id. § 218.129(a)(1)(i)(B); and eventually equip the operating loco-
motive “with a functioning alerter” operating as the regulations
elsewhere require, id. § 218.129(c)(3); see also id. § 218.129(a)(1)(ii).
Any railroads that do not qualify for an automatic exception
(such as Class I railroads, and Class II or III railroads that wish to
start carrying hazardous materials with a one-person crew for the
first time) also face burdensome requirements if they decide to re-
quest special approval to operate with a one-person crew. See id.
§ 218.131. A railroad seeking special approval must submit a peti-
tion “contain[ing] sufficient information for FRA to determine
whether approving the operation described in the petition is as safe
USCA11 Case: 24-11076 Document: 97-1 Date Filed: 08/11/2026 Page: 74 of 93

10 BRANCH, J., Dissenting 24-11076
or safer than a two-person minimum train crew operation.” Id.
§ 218.131(b). The petition must include information on 15 specific
topics related to the railroad’s operations, including “[t]he location
of the operation, with as much specificity as can be provided”;
“[t]he class(es) of track to be operated over [and] the method of
operation”; “[t]he maximum authorized speed of the operation”;
“[t]he approximate average number of miles and hours a person is
projected to operate as a train crewmember in a one-person train
crew operation”; “[t]he maximum number of cars and tonnage pro-
posed for the operation”; and “[w]hether the railroad is seeking ap-
proval to transport hazardous materials.” Id. § 218.131(b)(1)–(15).
The petitions must also include a risk assessment that identifies
hazards associated with moving to a one-person crew, calculates
and recalculates the risks identified for each hazard, and
“[p]rovide[s] a statement with supporting evidence that the one-
person train crew operation with a fully implemented mitigation
plan is as safe or safer than a two-person minimum train crew op-
eration.” Id. § 218.133(a)(3). “FRA may request any additional in-
formation, beyond what is provided in the petition, that it deems
necessary.” Id. § 218.131(c).
“If FRA finds that the petition complies with the require-
ments of § 218.131 and that approving the petition is as safe or safer
than a two-person minimum train crew operation, FRA will grant
the petition, normally within 120 days of its receipt.” Id.
§ 218.135(d)(2). Otherwise, FRA will deny the petition. Id.
§ 218.135(d)(3). “FRA may attach special conditions to the ap-
proval of the petition.” Id. § 218.135(d)(2).
USCA11 Case: 24-11076 Document: 97-1 Date Filed: 08/11/2026 Page: 75 of 93

24-11076 BRANCH, J., Dissenting 11
The Final Rule purported to offer justifications for the new
two-person requirement. But FRA simply pointed to general data
related to railroad safety, explaining that “the latest annual rail
safety data reflects some troubling trends that point toward a need
for heightened caution and awareness in railroad safety and opera-
tional planning.” 2024 Final Rule, 89 Fed. Reg. at 25053. It ob-
served that “[t]he rate for all human factor caused accidents in-
creased” by over 40% between 2013 and 2022, and by 13.6% from
2021 to 2022, but it did not offer any connection between these ac-
cidents and the crew sizes of the trains involved. See id.
Otherwise, FRA relied on individual anecdotes “of close calls
and lives saved by the action of two crewmembers working as a
team.” Id. at 25064. Commenters pointed out that “the second
crewmember can mitigate the risk of a sick or tired crewmember,”
id. at 25063, and that “two crewmembers keep each other alert and
on task,” id. at 25064. Other testimony suggested that new tech-
nologies “introduced new complexities and levels of attention cap-
ture not seen” before, which “emphasized the need for a conductor
on board due to the added level of distraction” on one-person
crews. Id. at 25062. New technologies can also “make[] the loco-
motive cab feel crowded,” and they require engineers to “direct
significant attention to computer screens,” so FRA believed that
imposing a two-person-crew requirement could mitigate these
risks. Id.
But FRA did not point to data or statistical evidence that a
general two-person-crew rule was necessary for railroad safety, and
USCA11 Case: 24-11076 Document: 97-1 Date Filed: 08/11/2026 Page: 76 of 93

12 BRANCH, J., Dissenting 24-11076
its regulatory impact analysis noted that it had “little insight into
any . . . data on the safety impacts” of state regulations requiring
two-person crews. It acknowledged that FRA “qualitatively dis-
cussed the benefits [of the rule] because it does not have sufficient
data to monetize those benefits.” Id. at 25052.
Without concrete data to support the rule, FRA stated
broadly that the rule would “reduce the likelihood of future acci-
dents proactively” and had “the potential to reduce the likelihood
of at least one type of foreseeable accident”: accidents caused by a
crew member on a one-person crew that becomes “physically un-
responsive.” Id. The agency stated that its conclusions about the
likelihood of reducing future accidents were valid “even if the type
of accident foreseen has not yet occurred.” Id. Nowhere in the
Final Rule did FRA point to a single railroad accident or derailment
caused by or attributed to operating with a one-person, rather than
a two-person, crew. Instead, it relied on the allegedly com-
monsense notion that two are better than one.
FRA acknowledged that the 2024 Final Rule was a change in
position from the 2019 Withdrawal Order, but it explained that it
had “reassessed its prior positions for two independent reasons.”
Id. 25083. First, in 2019 it had “de-emphasized safety concerns
raised by FRA-sponsored research”—i.e., the six research reports
from the 2016 NPRM—“on the cognitive and collaborat[ive] de-
mands of crewmembers and by commenters on the 2016 NPRM.”
Id. “The final rule is justified based on FRA’s reevaluation of those
safety concerns and the threat they pose to public safety.” Id.
USCA11 Case: 24-11076 Document: 97-1 Date Filed: 08/11/2026 Page: 77 of 93

24-11076 BRANCH, J., Dissenting 13
Second, FRA claimed it “considered information not analyzed in
the 2019 withdrawal, such as technological trends and operational
changes on Class I freight railroads since 2019.” Id. FRA main-
tained that (1) the industry is “utilizing longer trains than the his-
torical norm”; (2) “the rate for all human factor caused accidents
has increased in recent years, notably after the 2019 withdrawal”;
and (3) there was “uncertainty related to new operating technolo-
gies [that] can effect train safety.” Id. Again, though, FRA did not
explain how the longer trains, human factor caused accidents, or
“new operating technologies” were connected to any concrete
safety risk posed by one-person crews. See id. Rather, it simply said
that for those reasons, it “needed to change its position from the
2019 withdrawal.” Id.
As part of FRA’s regulatory impact analysis, it assessed the
potential costs that the Rule would impose on the railroad indus-
try. This time around, FRA estimated that the 10-year costs of the
Final Rule would be $6.6 million, calculated primarily from the
costs associated with maintaining an exception or applying for spe-
cial approval. Id. at 25057. FRA did not account for increased labor
costs; according to the agency, “[t]he requirements of this rule do
not affect railroads operating trains with two-person crews”—i.e.,
all Class I railroads.
1
“[T]herefore, they will not incur any costs.”
2

1
The parties agree that all mainline operations of Class I railroads operate at
present with two or more crew members.
2
FRA had performed a cost-benefit analysis that it issued along with the 2022
NPRM which likewise failed to account for any increased labor costs.
USCA11 Case: 24-11076 Document: 97-1 Date Filed: 08/11/2026 Page: 78 of 93

14 BRANCH, J., Dissenting 24-11076
B. Procedural background
Several railroads filed petitions challenging the 2024 Final
Rule. The petitioners include Class I railroads Union Pacific Rail-
road Company and BNSF Railway Company, Class II railroads
Florida East Coast Railway LLC and Indiana Rail Road Company,
and Class III railroads Nebraska Central Railroad Company and
Texas & Northern Railway Company, as well as two trade associ-
ations, the Association of American Railroads and the American
Short Line and Regional Railroad Association, which represent the
interests of various railroads.
We allowed the International Association of Sheet Metal,
Air, Rail, and Transportation Workers—“an unincorporated asso-
ciation acting as a labor union” for railroad employees—to inter-
vene as a respondent.
VII. Discussion
The petitioners challenge the 2024 Final Rule on several
grounds, but two provide independent bases for concluding that
the Rule is arbitrary and capricious. First, FRA failed to reasonably
explain its change in position from the 2019 Withdrawal Order to
the 2024 Final Rule. And second, FRA performed a cost-benefit

Petitioner Association of American Railroads offered comments arguing that
it was absurd not to account for increased labor costs. But while the Final Rule
observed that FRA had “received several comments related to the costs of the
proposed rule” and responded to some of those comments, it did not respond
to comments calling for FRA to account for increased labor costs. See 2024
Final Rule, 89 Fed. Reg. at 25098.
USCA11 Case: 24-11076 Document: 97-1 Date Filed: 08/11/2026 Page: 79 of 93

24-11076 BRANCH, J., Dissenting 15
analysis in developing the 2024 Final Rule but did not account for
labor costs associated with maintaining two-person crews. I will
consider each in turn.
A. FRA did not adequately explain its change in position from the
2019 Withdrawal Order
The APA requires courts to “hold unlawful and set aside
agency action, findings and conclusions found to be . . . arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance
with the law.” 5 U.S.C. § 706(2)(A). “The scope of review under
the ‘arbitrary and capricious’ standard is narrow and a court is not
to substitute its judgment for that of the agency.” Motor Vehicle
Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).
But the agency “must examine the relevant data and articulate a
satisfactory explanation for its action including a rational connec-
tion between the facts found and the choice made.” Id. (quotation
omitted). The agency’s explanation must be “sufficient to enable
us to conclude that [its action] was the product of reasoned deci-
sionmaking.” Id. at 52.
An agency decision may be arbitrary and capricious if the
agency changes positions without adequately explaining its reason-
ing. The “change-in-position doctrine” asks (1) “whether an
agency changed existing policy” and (2) whether the agency “dis-
play[ed] awareness that it is changing position and offer[ed] good
reasons for the new policy.” FDA v. Wages & White Lion Invs., LLC,
604 U.S. 542, 569–70 (2025) (emphasis in original) (quotations omit-
ted).
USCA11 Case: 24-11076 Document: 97-1 Date Filed: 08/11/2026 Page: 80 of 93

16 BRANCH, J., Dissenting 24-11076
While “the agency must show that there are good reasons
for the new policy,” “it need not demonstrate . . . that the reasons
for the new policy are better than the reasons for the old one.” FCC
v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009) (emphasis in
original). However, when the agency’s “new policy rests upon fac-
tual findings that contradict those which underlay its prior policy,”
it must provide “a more detailed justification.” Id. When such a
change occurs, “a reasoned explanation is needed for disregarding
facts and circumstances that underlay . . . the prior policy.” Id. at
516.
The Majority contends that the Final Rule was not a change
in position and, in any event, FRA sufficiently explained its new
position. I disagree on both points.
1. The 2024 Final Rule constitutes a change in position
In the 2019 Withdrawal Order, FRA found that there was
not “reliable or conclusive statistical data to suggest whether one-
person crew operations are generally safer or less safe than multi-
ple-person crew operations.” 2019 Withdrawal Order, 84 Fed. Reg.
at 24737. Five years later, FRA’s 2024 Final Rule imposed a two-
person-crew rule and stated that the “final rule [was] justified based
on FRA’s reevaluation of . . . safety concerns [related to one-person
crews] and the threat they pose to public safety.” 2024 Final Rule,
89 Fed. Reg. at 25083. In other words, FRA clearly changed its po-
sition between 2019 and 2024 on whether a two-person-crew re-
quirement would enhance public safety. And FRA recognized as
USCA11 Case: 24-11076 Document: 97-1 Date Filed: 08/11/2026 Page: 81 of 93

24-11076 BRANCH, J., Dissenting 17
much; in the 2024 Final Rule, it observed that it had “reassessed its
prior positions.” Id.
But according to the Majority, no such change in position
took place because the Ninth Circuit vacated the 2019 Withdrawal
Order. I disagree.
First, we need not decide what effect, if any, the Ninth Cir-
cuit’s ruling had on the 2019 Withdrawal Order, because FRA has
affirmatively conceded that its 2024 Final Order was a change in
position. Both in the 2024 Final Order and in its briefs before this
Court, FRA acknowledged that the Final Order was a change in
position from the earlier 2019 Withdrawal Order. In the Final Or-
der, FRA observed that it had “reassessed its prior positions” and
“determined that it needed to change its position from the 2019
withdrawal.” 2024 Final Order, 89 Fed. Reg. 25083. And in its brief
before this Court, FRA asserts that it “recognized that its decision
to promulgate a rule addressing crew size safety differed from its
choice in 2019 to withdraw a prior, different, proposed crew size
rule.” Because FRA’s Final Rule and briefing have conceded its
change in position, we need go no further in evaluating the first
step of the change-in-position doctrine. See Ohio v. EPA, 603 U.S.
279, 298 (2024) (observing, in response to a novel argument raised
by the dissent regarding arbitrary and capricious review, that the
Supreme Court “normally declines to entertain arguments for-
feited by the parties” (alteration adopted) (quotations omitted)).
In any event, the Majority has not pointed to a single Su-
preme Court or court of appeals decision holding that the change-
USCA11 Case: 24-11076 Document: 97-1 Date Filed: 08/11/2026 Page: 82 of 93

18 BRANCH, J., Dissenting 24-11076
in-position doctrine does not apply in this context.
3
The Majority
assumes that when an agency order has been vacated, it is as if the
order never existed. But there is simply no caselaw supporting
such an assumption. The cases the Majority cites suggest only that

3
The Supreme Court’s prior cases have demonstrated that an agency changes
existing policy when it “acts inconsistently with an earlier position, performs
a reversal of its former views as to the proper course, or disavows prior incon-
sistent agency action as no longer good law.” White Lion, 604 U.S. at 569–70
(alterations adopted) (quotations omitted). The Court has never held that the
earlier position must have binding authority at the time the agency changes
its position: an agency may act inconsistently with, perform a reversal as to,
or disavow a prior position that no longer holds binding authority. Cf. Cent.
Power and Light Co. v. United States, 634 F.2d 137, 150 (5th Cir. 1980) (“[A]n
agency must either conform itself to its prior norms and decisions or explain
the reason for its departure.” (emphasis added)); see Bonner v. City of Prichard,
661 F.2d 1206, 1207 (11th Cir. 1981) (en banc) (holding that all decisions from
the Fifth Circuit Court of Appeals issued before the close of business on Sep-
tember 30, 1981, are “binding as precedent in the Eleventh Circuit”).
In its most recent decision on the change-in-position doctrine, the Supreme
Court recognized that there is uncertainty about whether the initial position
at issue must have been expressed in a binding form to begin with. See White
Lion, 604 U.S. at 569 n.5. The Court noted that it has “traditionally applied the
change-in-position doctrine when an agency shifts from a position expressed
in a more formal setting.” Id. The Court observed, though, that it has “on at
least one occasion applied the doctrine when an agency altered a position first
stated in a policy statement.” Id. (citing Dep’t of Homeland Sec. v. Regents of Univ.
of Cal., 591 U.S. 1, 30 (2020)). And the Court “assume[d], without deciding,
that the change-in-position doctrine applies to an agency’s divergence from a
position articulated in nonbinding guidance documents.” Id.
USCA11 Case: 24-11076 Document: 97-1 Date Filed: 08/11/2026 Page: 83 of 93

24-11076 BRANCH, J., Dissenting 19
the vacated order no longer has any legal effect. They do not imply
that the order—with all its factual findings—completely dissolves.
4

Thus, I disagree with the Majority’s conclusion that the
change-in-position doctrine did not apply such that FRA had no ob-
ligation to explain its changed view of the facts simply because its
earlier order had been vacated on other grounds.
2. FRA did not adequately explain its change
I now move to the second step of the change-in-position
doctrine and find that FRA did not satisfy it. FRA did not merely
change its position when it promulgated the 2024 Final Rule; it
made factual findings that contradicted its findings in the 2019
Withdrawal Order—relying on largely the same data it considered
in 2019—without offering adequate explanations for the change.
See Fox Television, 556 U.S. at 515.

4
It is notable that the Ninth Circuit’s decision vacating the 2019 Withdrawal
Order did not call into question the Order’s conclusion that there was insuffi-
cient evidence that two-person crews were safer than one-person crews. See
Transp. Div., 988 F.3d at 1178. Instead, the Ninth Circuit focused on something
else entirely: FRA’s purported attempt to effectively “adopt a one-person train
crew rule” by “preempt[ing] any state safety laws concerning train crew staff-
ing.” Id. The court determined that the lack of data “suggest[ing] whether
one-person crew operations are generally safer or less safe than multiple-per-
son crew operations” did not justify an effective one-person rule. Id. at 1182
(quoting 2019 Withdrawal Order, 84 Fed. Reg. 24737). But it did not dispute
FRA’s conclusion that a two-person rule was unnecessary and unsupported by
the evidence.
USCA11 Case: 24-11076 Document: 97-1 Date Filed: 08/11/2026 Page: 84 of 93

20 BRANCH, J., Dissenting 24-11076
In 2019, FRA withdrew its 2016 NPRM, which would have
required two-person crews. In doing so, it stated that “existing one-
person operations have not yet raised serious safety concerns and,
in fact, it is possible that one-person crews have contributed to the
railroads’ improving safety record.” 2019 Withdrawal Order, 84
Fed. Reg. at 24739 (alteration adopted) (quotations omitted). FRA
determined that “despite studying this issue in-depth and perform-
ing extensive outreach to industry stakeholders and the general
public, FRA’s statement in the [2016] NPRM that it ‘cannot provide
reliable or conclusive statistical data to suggest whether one-person
crew operations are generally safer or less safe than multiple-per-
son crew operations’ still holds true today.” Id. at 24737. Among
other things, FRA observed that it did “not have information that
suggest[ed] that there ha[d] been any previous accidents involving
one-person crew operations that could have been avoided by add-
ing a second crewmember.” Id. at 24738. Addressing the six re-
search reports the 2016 NPRM had relied on, FRA noted that
“[w]hile the[] reports identif[ied] safety issues that railroads should
consider when evaluating any reduction in the number of train
crewmembers or a shift in responsibilities among those crewmem-
bers, the reports [did] not indicate that one-person crew operations
[were] less safe and therefore [did] not form a sufficient basis for a
final rule on crew staffing.” Id. at 24740. FRA also determined that
a two-person-crew rule would “unnecessarily impede the future of
rail innovation and automation,” because automation would re-
duce human-error accidents. Id. (capitalization omitted).
USCA11 Case: 24-11076 Document: 97-1 Date Filed: 08/11/2026 Page: 85 of 93

24-11076 BRANCH, J., Dissenting 21
In the 2024 Final Rule, on the other hand, FRA reversed
course and claimed that a two-person-crew rule was now “neces-
sary” to keep people safe from railroad accidents. 2024 Final Rule,
89 Fed. Reg. at 25053, 25083 (“This final rule is justified based
on . . . safety concerns” about one-person crews.). Because FRA’s
“new policy rest[ed] upon factual findings that contradict[ed] those
which underlay its prior policy,” it was required to provide “a rea-
soned explanation . . . for disregarding facts and circumstances that
underlay” the 2019 Order. Fox Television, 556 U.S. at 515–16. But
FRA did not do so: it did not sufficiently explain how it reached an
opposing conclusion while relying on largely the same evidence it
discussed in the 2019 Withdrawal Order, and it did not connect the
changed circumstances it identified to the safety of one-person
crews.
In the 2024 Final Rule, FRA offered two justifications for its
changed position. First, it said that the 2019 Withdrawal Order had
“de-emphasized safety concerns raised by FRA-sponsored research
on the cognitive and collaborat[ive] demands of crewmembers and
by commenters on the 2016 NPRM.” 2024 Final Rule, 89 Fed. Reg.
at 25083. It offered the general explanation that “the research raises
safety concerns regarding one-person train crews, such as the loss
of a second crewmember to notice and correct errors,” and that the
Final Rule was “justified based on FRA’s reevaluation of those
safety concerns and the threat they pose to public safety.” Id.
But the “research” FRA referred to did not draw any link be-
tween crew size and railroad accidents or concrete safety risks, and
USCA11 Case: 24-11076 Document: 97-1 Date Filed: 08/11/2026 Page: 86 of 93

22 BRANCH, J., Dissenting 24-11076
FRA had recognized as much in the 2019 Withdrawal Order. And
FRA did not explain why the same research it had previously found
inadequate was now sufficient.
5
Simply regurgitating the same
studies and findings FRA had previously rejected and concluding,
without explanation, that, upon reevaluation, they now provided
sufficient support is not a “reasoned explanation.” Fox Television,
556 U.S. at 515–16.
Second, FRA maintained that the change in position was jus-
tified by changed circumstances such as longer trains, an increase
in human-error accidents, and uncertainty about new technolo-
gies. 2024 Final Rule, 89 Fed. Reg. at 25083. But FRA’s explana-
tions were conclusory at best and suffered from other underlying
flaws. FRA first claimed that “freight train length has increased in
recent years.” Id. For support, FRA cited the 2022 NPRM, which
declared that “[t]he growth in the number of trains with more than
150 rail cars is a business practice that FRA has observed over the
past several years.” 2022 NPRM, 87 Fed. Reg. at 45571. The 2022
NPRM, in turn, cited a study from May 2019—the same month
FRA withdrew its previous rulemaking—that considered data from
2008 through 2017. Id. at 45571 n.71; see U.S. Gov’t Accountability
Off., Rail Safety: Freight Trains Are Getting Longer, and Additional
Information Is Needed to Assess Their Impact 3, 11 (2019). In other

5
Nor did the 2022 NPRM offer further explanation of the change. It merely
said that the 2019 Withdrawal Order had “overweighted a lack of safety data
and de-emphasized safety concerns raised by the research.” 2022 NPRM, 87
Fed. Reg. at 45572. But it did not explain why it drew different conclusions
than it had drawn in 2019 based on the same reports.
USCA11 Case: 24-11076 Document: 97-1 Date Filed: 08/11/2026 Page: 87 of 93

24-11076 BRANCH, J., Dissenting 23
words, there was no evidence that train lengths had increased be-
tween 2019 and 2024 such that a policy change was warranted.
Plus, FRA did not specify how longer trains heightened safety risks,
nor did it explain why increasing crew sizes would mitigate such
risks. It merely posited that “this trend may have cascading safety
impacts unless mitigated by technology, training, or other pro-
cesses.” 2024 Final Rule, 89 Fed. Reg. at 25083 (emphasis added).
FRA is entitled to rely on “predictive judgments” regarding safety
trends, but such predictions “must be based on some logic and ev-
idence, not sheer speculation.” Sorenson Commc’ns Inc. v. FCC, 755
F.3d 702, 708 (D.C. Cir. 2014) (quotations omitted).
Next, FRA asserted that “the rate for all human factor caused
accidents has increased in recent years, notably after the 2019 with-
drawal.” 2024 Final Rule, 89 Fed. Reg. at 25083. For support, it
pointed generally to the Final Rule’s Executive Summary, which
observed that “[t]he percentage of train accidents attributed solely
to human factors . . . increased from 38.5 percent to 45.6 percent
between 2013 and 2022.” Id. at 25053. But, again, FRA failed to
link these human-factor-caused accidents to crew size or to demon-
strate why adding additional crew members would reduce such ac-
cidents. See id. at 25083.
Finally, FRA determined that “uncertainty related to new
operating technologies can affect train safety,” and that current
technological innovations had not yet been proven to obviate the
need for a second crew member. Id. But once again, FRA offered
no evidence that this was a post-2019 development: FRA cited the
USCA11 Case: 24-11076 Document: 97-1 Date Filed: 08/11/2026 Page: 88 of 93

24 BRANCH, J., Dissenting 24-11076
2022 NPRM, which in turn cited a Department of Transportation
report from 2009. See id. n.285 (citing 2022 NPRM, 87 Fed. Reg. at
45572–73). In fact, this 2009 report was one of the six reports that
FRA had considered during its earlier rulemaking and found, in the
2019 Withdrawal Order, not to support a two-person rule. See 2019
Withdrawal Order, 84 Fed. Reg. at 24739–40 & n.34. So this report
could not support a finding that changed conditions justified FRA’s
changed position.
Put simply, each of FRA’s proffered reasons for the change
relied on no more than mere speculation that requiring an addi-
tional crew member would address safety concerns. And “[w]e
may not uphold agency action based on speculation.” Nat’l Sports
Shooting Found., Inc. v. Jones, 716 F.3d 200, 214 (D.C. Cir. 2013). Be-
cause FRA failed to provide “a reasoned explanation . . . for disre-
garding facts and circumstances that underlay” the 2019 Order, its
2024 Final Order is arbitrary and capricious. Fox Television, 556 U.S.
at 516.
B. FRA did not adequately consider the costs of the Rule
“Agencies have long treated cost as a centrally relevant fac-
tor when deciding whether to regulate.” Michigan v. EPA, 576 U.S.
743, 752–53 (2015). “Consideration of cost reflects the understand-
ing that reasonable regulation ordinarily requires paying attention
to the advantages and the disadvantages of agency decisions.” Id.
at 753 (emphasis in original). The Majority contends that FRA was
not statutorily required to conduct a cost-benefit analysis. True.
But FRA did perform one. And the D.C. Circuit has explained that
USCA11 Case: 24-11076 Document: 97-1 Date Filed: 08/11/2026 Page: 89 of 93

24-11076 BRANCH, J., Dissenting 25
“when an agency decides to rely on a cost-benefit analysis as part
of its rulemaking, a serious flaw undermining that analysis can ren-
der the rule unreasonable” and thus arbitrary and capricious. Nat’l
Ass’n of Home Builders v. EPA, 682 F.3d 1032, 1040 (D.C. Cir. 2012).
“Nonetheless, we review such a cost-benefit analysis deferentially,”
and the “burden to show error is high.” Id. (quotation omitted).
And it is “up to the Agency to decide (as always, within the limits
of reasonable interpretation) how to account for cost.” Michigan,
576 U.S. at 759. In this case, however, FRA’s analysis of the costs
associated with the 2024 Final Rule contains a “serious flaw” that
makes the Rule arbitrary and capricious: it fails to account for the
labor costs associated with staffing every train with two people, ra-
ther than just one.
The 2024 Final Rule estimated that the 10-year costs of the
Rule would be $6.6 million. 2024 Final Rule, 89 Fed. Reg. at 25057.
In its estimate, it accounted for the direct compliance costs the reg-
ulatory scheme would impose, including “costs associated with
alerters, operating rules, notification to FRA, risk assessments and
special approvals, annual reporting after receipt of special approval,
and Government administration.” Id. The $6.6 million estimate
did not, however, include any of the labor costs railroads would
incur by operating with two-person crews where they previously
would have been permitted to operate with one. In fact, FRA’s
regulatory impact analysis explicitly stated that the Rule would
“not affect railroads operating trains with two-person crews; there-
fore they will not incur any costs.” It acknowledged that railroads
currently operating with two crew members that wanted special
USCA11 Case: 24-11076 Document: 97-1 Date Filed: 08/11/2026 Page: 90 of 93

26 BRANCH, J., Dissenting 24-11076
approval to operate with one would “need to maintain current
staffing levels” while awaiting special approval from FRA. And it
“recognize[d] that a railroad may voluntarily abandon its one-per-
son operation or refuse to improve its operation to prove it meets
FRA’s safety standard, creating a cost for additional crewmem-
bers,” but it said that “the options in this final rule make that cost
avoidable.”
The absurdity of requiring more labor but refusing to
acknowledge the cost of that labor is highlighted by the fact that
FRA did account for such costs in its first round of rulemaking.
When it issued the 2016 NPRM, FRA’s cost-benefit analysis ac-
counted for costs “result[ing] from additional crew members on
the trains that are currently operating with a one-person crew and
from the delay or prevention of instituting new one-person crew
operations in the future” (emphasis added). As a result, it con-
cluded that costs associated with the proposed rule could be as high
as $27.7 million over 10 years. FRA’s only explanation for why la-
bor costs are no longer relevant is that the 2024 Final Rule, unlike
the rule proposed in 2016, offers the possibility that railroads will
receive special approval to operate with single-person crews. Ac-
cording to FRA, increased labor costs are only “hypothetical” when
railroads may avoid them via the special approval process. But
nothing about these costs is hypothetical: railroads who fail to re-
ceive special approval must continue to pay a second crew member
when, absent the Rule, they would be able to shift to a one-person
crew. And even railroads that ultimately receive special approval
must “maintain current staffing levels” while awaiting such
USCA11 Case: 24-11076 Document: 97-1 Date Filed: 08/11/2026 Page: 91 of 93

24-11076 BRANCH, J., Dissenting 27
approval. These are all costs to the railroads of meeting regulatory
requirements, and FRA’s cost-benefit analysis accounted for none
of them.
6

FRA certainly may decide “how to account for cost,” Michi-
gan, 576 U.S. at 759, but once it decides to perform a cost-benefit
analysis, it may not simply disregard an entire category of obvious
costs. The Final Rule relies heavily on the allegedly common-sense
idea that having more crew members leads to greater safety while
ignoring the obvious fact that having more crew members means
more labor costs. The total failure of FRA to at least consider these
costs is a “serious flaw” in the agency’s cost-benefit analysis that
demands vacatur. Nat’l Ass’n of Home Builders, 682 F.3d at 1040.

6
The petitioners express concerns that the special approval process gives FRA
too much discretion such that few will be granted special approval to operate
with a single-person crew. The Majority dismisses these concerns as mere
“speculation and innuendo.” But when questioned about these concerns at
oral argument, FRA acknowledged, “Of course, this is a special approval pro-
cess. The agency does expect that the general, default rule will be that rail-
roads operate with two people.” So FRA cannot simply disregard labor costs
altogether because the special approval process offers some possibility that
some railroads may, at some later point, be allowed to shift to one-person
crews.
Additionally, while the failure to account for labor costs comes into clearest
focus when discussing the Class I railroads, which do not qualify for any auto-
matic exceptions, Class II and Class III railroads may also incur increased labor
costs if FRA determines they do not qualify for an automatic exception or if
they wish to begin carrying hazardous materials.

USCA11 Case: 24-11076 Document: 97-1 Date Filed: 08/11/2026 Page: 92 of 93

28 BRANCH, J., Dissenting 24-11076
VIII. Conclusion
For these two independent reasons, I would vacate FRA’s
2024 Final Rule as arbitrary and capricious.
7
I therefore respectfully
dissent.

7
Because the challenges discussed above provide grounds to vacate the Rule
in its entirety, I need not address the remainder of the arguments the petition-
ers raise. I highlight, however, that FRA also arguably failed to “display aware-
ness” that it had changed its position regarding requiring alerters on slower
trains, see White Lion, 604 U.S. at 570, which could provide another ground for
vacating that portion of the Rule.
USCA11 Case: 24-11076 Document: 97-1 Date Filed: 08/11/2026 Page: 93 of 93