Transportation Division of the International Association of Sheet Metal, Air, Rail v. Federal Railroad Administration and United States Department of Transportation

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 25, 2022 Decided July 15, 2022
No. 21-1049
TRANSPORTATION DIVISION OF THE INTERNATIONAL
ASSOCIATION OF SHEET METAL, AIR, RAIL AND
TRANSPORTATION WORKERS AND BROTHERHOOD OF
LOCOMOTIVE ENGINEERS AND TRAINMEN,
PETITIONERS
v.
FEDERAL RAILROAD ADMINISTRATION AND UNITED STATES
DEPARTMENT OF TRANSPORTATION,
RESPONDENTS
ASSOCIATION OF AMERICAN RAILROADS,
INTERVENOR
On Petition for Review of a Final Rule
of the Federal Railroad Administration
Lawrence M. Mann argued the cause for petitioners. With
him on the briefs were Kevin Brodar and Joshua D. McInerney.
James Petroff entered an appearance.
Amanda L. Mundell, Attorney, U.S. Department of Justice,
argued the cause for respondents. With her on the brief were

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Brian M. Boynton, Acting Assistant Attorney General at the
time the brief was filed, Abby C. Wright, Attorney, John E.
Putnam, Deputy General Counsel, U.S. Department of
Transportation, Paul M. Geier, Assistant General Counsel for
Litigation and Enforcement, Joy K. Park, Senior Trial
Attorney, Allison Ishihara Fultz, Chief Counsel, Federal
Railroad Administration, and Rebecca S. Behravesh, Senior
Attorney.
Thomas H. Dupree Jr. argued the cause for intervenor
Association of American Railroads in support of respondent.
With him on the brief was Kathryn D. Kirmayer.
Before: MILLETT, WILKINS, and JACKSON*, Circuit
Judges.
Opinion for the Court filed by Circuit Judge MILLETT.
MILLETT, Circuit Judge: In 2020, the Federal Railroad
Administration (“Administration”) issued a broad-ranging rule
revising the regulations governing freight railroad safety. See
Miscellaneous Amendments to Brake System Safety Standards
and Codification of Waivers (“Final Rule”), 85 Fed. Reg.
80,544 (Dec. 11, 2020). Two unions representing employees
of freight railroads—the Transportation Division of the
International Association of Sheet Metal, Air, Rail, and
Transportation Workers and the Brotherhood of Locomotive
Engineers and Trainmen (together, “Unions”)—have
petitioned for review. The Unions principally argue that the
Administration fell short in numerous respects in its statutory
obligation to prioritize safety in regulatory decisionmaking.
They also contend that the Administration impermissibly
* Circuit Judge, now Justice, Jackson was a member of the panel
at the time the case was argued but did not participate in the opinion.

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denied them an opportunity to seek reconsideration, and that
the Final Rule was untimely issued.
We agree with the Unions that the portion of the Final Rule
lifting calibration requirements for certain telemetry devices
did not grapple with the Administration’s safety obligation.
But all their other challenges fail either on the merits or for lack
of jurisdiction. As a result, we grant the petition in part, deny
the petition in part, dismiss the petition in part, and remand part
of the Final Rule.
I
A
Federal law charges the Administration with
“prescrib[ing] regulations and issu[ing] orders for every area of
railroad safety[.]” 49 U.S.C. § 20103(a); 49 C.F.R. § 1.89(a),
(b). Congress has directed that, “[i]n carrying out its duties, the
Administration 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.” 49
U.S.C. § 103(c).
To permit “industry stakeholders” to test “novel
transportation technologies,” Final Rule, 85 Fed. Reg. at
80,546, the Administration “may waive[] or suspend the
requirement to comply with[] any part of a regulation” if doing
so “is in the public interest and consistent with railroad
safety[,]” 49 U.S.C. § 20103(d)(1); 49 C.F.R. § 1.89(a); see
also Brotherhood of Locomotive Eng’rs & Trainmen v. Federal
R.R. Admin., 972 F.3d 83, 90 (D.C. Cir. 2020). The hope is
that “[a]ctivity under a waiver of regulatory compliance may
generate sufficient data and experience to support” its

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codification into regulation. 85 Fed. Reg. at 80,546. In the
Administration’s view, “[c]odifying a waiver, and thereby
making its exemptions and requirements universally
applicable, allows the entire industry to benefit from the
regulatory relief the waiver provides[.]” Id. Congress has
recently endorsed this regulatory approach. See Infrastructure
Investment and Jobs Act, Pub. L. No. 117-58, § 22411, 135
Stat. 429, 742 (2021) (codified at 49 U.S.C. § 20103(d)(4)(A))
(“Not later than 1 year after the first day on which a waiver
* * * has been in continuous effect for a 6-year period, the
Secretary shall complete a review and analysis of such waiver
* * * to determine whether issuing a rule that is consistent with
the waiver is * * * (i) in the public interest; and (ii) consistent
with railroad safety.”).
B
In December 2020, the Administration issued new
regulations that revised procedures for the testing, inspection,
and operation of freight train brake systems. Final Rule, 85
Fed. Reg. 80,544.
To understand the regulations, some background is
needed. Train brakes are controlled by compressed air. This
air flows from the locomotive to each rail car through a brake
pipe that runs the length of the train. To apply the brakes, a
train’s engineer uses the locomotive’s brake valve to release air
from the brake pipe. The consequent reduction in air pressure
causes air stored in reservoirs in each car to enter the car’s
brake mechanisms, pressing the brake shoes against the wheels.
To release the brakes, the engineer severs this connection by
positioning the brake valve to feed air back into the brake pipe,
stabilizing the brake pipe air pressure. See generally
Amendments to Brake System Safety Standards Governing
Operations Using an Electronic Air Brake Slip System

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(“Proposed Brake Amendments”), 86 Fed. Reg. 3,957, 3,959–
3,960 (proposed Jan. 15, 2021); Railroad Power Brakes and
Drawbars, 50 Fed. Reg. 35,640, 35,641 (Sept. 3, 1985).
The 2020 Final Rule made a panoply of changes to the
Administration’s brake system safety regulations. At issue in
this case are the Final Rule’s revisions to (i) brake testing and
inspection requirements and (ii) the rules governing so-called
end-of-train devices.
1
Railroad brake systems must, by law, be tested regularly.
A comprehensive brake test, which is known as a Class I initial
terminal inspection, is required when a train has been “off-
air”—disconnected from a source of compressed air—for a
specified period of time. 49 C.F.R. § 232.205(a)(3). The Final
Rule increased from four to 24 hours the maximum permissible
off-air time before a new Class I brake test is required. Final
Rule, 85 Fed. Reg. at 80,553.1
Among other things, Class I tests measure the leakage of
air from the brake pipe. 49 C.F.R. § 232.205(c)(1). In trains
with multiple locomotives—so-called “distributed power
trains”—each locomotive feeds air into the brake pipe.
Proposed Brake Amendments, 86 Fed. Reg. at 3,960.
Likewise, some trains contain air repeater units that do the
same. 49 C.F.R. § 232.5.
1 The Administration also increased to 24 hours the off-air
periods that factor into the timing of other brake tests. See 49 C.F.R.
§ 232.209(a)(1) (Class II brake tests); id. § 232.211(a)(3)–(a)(5)
(Class III brake tests); id. § 232.217(c)(1) (yard air brake tests).

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For trains whose brake pipes are supplied by multiple
sources, the Final Rule increased the maximum permissible
“air flow”—a measure of brake pipe leakage quantifying the
amount of air the brake valve must feed into the brake pipe to
maintain proper pressure—from 60 to 90 cubic feet per minute.
Final Rule, 85 Fed. Reg. at 80,554–80,555. Air flow is
measured by a device called an air flow method indicator. 49
C.F.R. § 232.5.
Individual freight cars also undergo brake tests. The Final
Rule prescribed that the brakes of freight cars on shop or repair
tracks need not be tested if they have received an automated
test within the previous 24 or 48 months (depending on the type
of test used). 85 Fed. Reg. at 80,559.
The Administration took several other relevant actions
concerning brake testing.
First, it declined to classify air repeater units and air flow
method indicators as locomotive appurtenances subject to the
same safety standards as locomotives themselves. 85 Fed. Reg.
at 80,555–80,556 (air repeater units); id. at 80,557 (air flow
method indicators).
Second, the Final Rule allowed the operators of extended
haul trains, which are permitted to travel up to 1,500 miles
between brake tests, to forgo reporting the type of equipment
such trains haul and to designate alternative testing and
inspection locations for them in emergencies. 85 Fed. Reg. at
80,557.
Third, the Final Rule reworked the regulations governing
brake testing and inspections for tourist, scenic, historic, and
excursion railroads, which generally use older, heritage rail
cars and locomotives. 85 Fed. Reg. at 80,562–80,564.

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2
The Final Rule also changed the regulation of end-of-train
devices. An end-of-train device pneumatically seals the brake
pipe. Proposed Brake Amendments, 86 Fed. Reg. at 3,959.
Using radio telemetry, the device also communicates the air
pressure level at the end of the brake pipe to the locomotive.
See 49 C.F.R. § 232.403(b). The Final Rule eliminated a
requirement that end-of-train devices’ telemetry equipment be
calibrated at least once every 368 days. 85 Fed. Reg. at 80,561.
Certain end-of-train devices serve an additional “critical”
role in brake functioning. 85 Fed. Reg. at 80,551. In an
emergency, the train crew can rapidly apply the train’s brakes
by directing the end-of-train device to vent air from the brake
pipe. See 49 C.F.R. § 232.405(a)–(c). For this system to work,
though, a radio connection must be maintained between the
end-of-train device’s rear unit, which is attached to the brake
pipe, see id. § 232.403(b), and its front unit, which transmits
commands from the locomotive, see id.
§§ 232.403(f), 232.405(a); 85 Fed. Reg. at 80,551. Under
current regulations, if a rear unit loses contact with its front unit
for 16 minutes and 30 seconds, the front unit alerts the crew,
which must reduce the train’s speed until the radio connection
is restored. 49 C.F.R. § 232.407(g). In the Final Rule, the
Administration rejected proposals from the Unions and the
National Transportation Safety Board to reduce that time
period. 85 Fed. Reg. at 80,551.
End-of-train devices also contain a lamp that is visible to
trains approaching from behind. See 49 C.F.R. § 221.13. The
Final Rule decreased the minimum height at which these lights
must be displayed from 48 inches above the top of the rail to

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“above the [rail car’s] coupler”—approximately 40 inches
above the top of the rail. 85 Fed. Reg. at 80,550.
Additionally, the Final Rule codified a waiver providing
that when certain railroad employees enter the tracks to change
the battery of an end-of-train device, the train crew is not
required under certain circumstances to institute “blue signal
protection”—a protocol under which markers are used to alert
other workers and nearby trains that a person is present on the
tracks. 85 Fed. Reg. at 80,548–80,549.
Lastly, the Final Rule codified waivers exempting end-of-
train devices using air-powered generators from certain battery
life requirements applicable to other devices. 85 Fed. Reg. at
80,559–80,560.
* * *
Because the Final Rule “reliev[ed] * * * regulatory
restrictions,” the Administration “ma[d]e the rule effective
upon publication.” 85 Fed. Reg. at 80,544; see 5 U.S.C.
§ 553(d), (d)(1) (“The required publication * * * of a
substantive rule shall be made not less than 30 days before its
effective date, except * * * a substantive rule which grants or
recognizes an exemption or relieves a restriction[.]”).
The Unions timely petitioned for review, arguing that the
Final Rule (i) disregarded the Administration’s statutory
mandate to prioritize safety, (ii) deprived them of an
opportunity to seek reconsideration of the rule, and (iii) was
untimely issued.
We have jurisdiction under 28 U.S.C. § 2342(7) and 49
U.S.C. § 20114(c).

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II
A
We review the Administration’s Final Rule using the well-
established standards of the Administrative Procedure Act
(“APA”). Burlington N. Santa Fe Ry. Co. v. Department of
Transp., 566 F.3d 200, 203 (D.C. Cir. 2009). “[T]he APA
requires agencies to reasonably explain” the bases for their
actions and conclusions, Brotherhood of Locomotive Eng’rs &
Trainmen, 972 F.3d at 115, and it directs courts to “hold
unlawful and set aside agency action” that is “arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law[,]” 5 U.S.C. § 706(2), (2)(A). “A rule is
arbitrary and capricious if an agency fails to consider a factor
[it] must consider under its organic statute[.]” Lindeen v. SEC,
825 F.3d 646, 657 (D.C. Cir. 2016) (formatting modified and
citation omitted).
Here, Congress has established—in no uncertain terms—
a “statutory requirement to prioritize safety” in the regulatory
process. Transportation Div. of the Int’l Ass’n of Sheet Metal,
Air, Rail & Transp. Workers v. Federal R.R. Admin., 10 F.4th
869, 876 (D.C. Cir. 2021). Recall that “[i]n carrying out its
duties, the Administration 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.” 49 U.S.C. § 103(c).
An agency with such a “broad mandate” to “assign[],
maintain[], and enhanc[e] safety * * * as the highest priorit[y]”
must affirmatively consider and give substantial weight to any
“plausible * * * safety concern[s]” a policy proposal
implicates. Flyers Rights Educ. Fund, Inc. v. Federal Aviation

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Admin., 864 F.3d 738, 741, 744 (D.C. Cir. 2017) (citation
omitted); see also Mozilla Corp. v. FCC, 940 F.3d 1, 60 (D.C.
Cir. 2019) (an agency charged with regulating in an area that
Congress has “deemed important to protecting public safety
* * * must take into account its duty to protect the public”)
(citation omitted). Like all its “findings[] and conclusions[,]”
5 U.S.C. § 706(2), the Administration’s safety determinations
must be “support[ed]” by the record and “reasonably
explained[,]” Transportation Div., 10 F.4th at 876.
B
The record before us shows that the Administration acted
“consistent[ly] with consideration of ‘safety as the highest
priority[,]’” Transportation Div., 10 F.4th at 876 (quoting 49
U.S.C. § 103(c)), in all respects but one involving the
calibration of older-generation end-of-train devices.
1
The Unions raise several safety objections to the Final
Rule’s provisions governing brake testing and inspection for
trains and rail cars. None of these claims succeeds.
a
The Unions first claim that the Administration’s decision
to increase the maximum permissible off-air period from four
to 24 hours violates its safety mandate. They are mistaken.
The Administration took careful account of the safety
implications of this change, and reasonably concluded that
increasing the off-air period would not pose a safety risk in
light of “technological improvements to the air brake
systems[.]” Final Rule, 85 Fed. Reg. at 80,553.

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The Administration grounded its judgment on a
comparison of brake safety records in the United States and
Canada, where the maximum off-air period was already 24
hours. That study “show[ed] fewer undesired and unintended
emergency brake applications occurring in Canada than in the
U.S.” 85 Fed. Reg. at 80,553. Buttressing that conclusion was
a study from the Association of American Railroads’
Transportation Technology Center testing a 24-hour off-air
period and finding no adverse safety consequences. Id.
The Unions do not directly question this data or the
Administration’s conclusion that extending the off-air period
to 24 hours would not adversely affect safety. Instead, they
take issue with, among other things, the Administration’s
“expect[ation]” that decreasing the frequency of tests would
reduce workplace injuries such as “slips, trips, and falls” by
those conducting the brake tests. 85 Fed. Reg. at 80,553.
Specifically, the Unions fault the Administration’s failure to
quantify this reduction and its lack of “reliable supporting
data.” Unions Opening Br. 13.
Neither objection holds up. The Administration relied on
data supplied by the Association of American Railroads
“quantifying slips, trips, and falls incurred[,]” 85 Fed. Reg. at
80,553, by workers “bending or stooping” over, “stepping
on[,]” and “walking” on train tracks while on the job, J.A. 276–
277 (Association of American Railroads’ data report). The
Administration reasonably found this data reliable because it
was initially “submitted by [the Unions’] own constituents to
their employing railroads[,]” and in turn to the
Administration’s accident database. 85 Fed. Reg. at 80,553.
Consequently, the Administration considered the data “to be of
the type the agency routinely relies upon to inform its
rulemakings[.]” Id. From that information, the Administration
made a “reasonable predictive judgment based on the

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evidence” before it that fewer brake tests—and hence fewer
occasions for workers to be on the tracks—would lead to fewer
injuries. FCC v. Prometheus Radio Project, 141 S. Ct. 1150,
1160 (2021).
The Unions worry that this rationale, if taken to its logical
conclusion, would justify “doing away with inspections
altogether.” Unions Opening Br. 14. We need not go down
that slippery slope. Here, the Administration had persuasive
evidence before it that lengthening the off-air time would both
reduce risks to workers and maintain a high level of railway
safety. Nothing in the Administration’s rulemaking or our
decision forecloses a different balance from occasioning a
different outcome.
The Unions also allude to a prior rulemaking in which the
Administration surmised that a lengthy off-air period might
pose safety problems in areas where vandalism is common.
The Administration directly responded to that point by
explaining that (i) the Unions did “not submit[] any data to
support [their] concerns[,]” (ii) “no other commenters provided
any information on vandalism[,]” and (iii) its own “accident
database contains no information indicating that vandalism of
air brakes has had any significant relationship to air brake–
caused accidents.” 85 Fed. Reg. at 80,553.
The Unions next offer a grab bag of meritless objections
to the Administration’s decisional process. Their concern that
the off-air period change was made in response to the
Association of American Railroads’ rulemaking petition is
beside the point as the Administration is authorized to act in
response to a rulemaking petition. See 49 C.F.R. §§ 211.7,
211.9; see also 5 U.S.C. § 553(e) (“Each agency shall give an
interested person the right to petition for the issuance * * * of
a rule.”). Their complaint that the Administration relied on

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“old data * * * which had already been rejected[,]” Unions
Opening Br. 16, overlooks that the Final Rule relied heavily on
newly submitted safety data from freight rail operations in
Canada under a 24-hour off-air rule. Finally, their assertion
that the Administration was concerned only with “the
economic interests of the railroad[,]” Unions Opening Br. 16
(citation omitted), blinks away the Administration’s
affirmative safety findings.
b
The Unions challenge the Administration’s decision to
increase the maximum permissible combined brake pipe
leakage—defined in terms of air flow—from 60 to 90 cubic
feet per minute (“CFM”) on distributed power trains and trains
with air repeater units. They contend that this change will
allow brake pipes to leak more than the “long-standing” limit
of five pounds per square inch per minute. Unions Opening Br.
17; see 49 C.F.R. § 232.205(c)(1) (“Brake pipe leakage shall
not exceed 5 [pounds per square inch] per minute or air flow
shall not exceed 60 * * * CFM[].”).
The Administration, though, reasonably found that the
leakage limit could safely be raised. It noted that “since 2011,
Canadian railroads ha[d] operated with the higher air flow
limit[,]” and “railroads in the U.S. ha[d] tested and operated
with air flow limits of 90 CFM” on distributed power trains
under a seven-year waiver, essentially without incident. 85
Fed. Reg. at 80,555. The Unions do not dispute the reliability
of this evidence or its direct relevance here.
The Administration also soundly laid out the technical
basis for its judgment: “Because use of [distributed power]
locomotives and [air repeater units] provide[s] multiple sources
of air, the total leakage from the brake pipe can be greater than

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60 CFM, as long as each individual source of air is controlling
a portion of the brake pipe that leaks less than 60 CFM,” as
required by 49 C.F.R. § 232.205(c)(1). 85 Fed. Reg. at 80,554–
80,555; see also 49 C.F.R. § 232.205(c)(1)(ii)(B) (“A train
equipped with at least one distributed power unit or an air
repeater unit providing a source of brake pipe control air from
two or more locations must not exceed a combined flow of 90
cubic feet per minute[.]”) (emphasis added). The Unions have
no answer to that logic.
c
The Unions also challenge as unsafe the Administration’s
decision to allow a 24- or 48-month interval between brake
tests of individual rail cars if those tests are conducted with
automated devices. The Administration reasonably concluded
otherwise.
The Administration grounded its judgment on both real-
world test results obtained during a seven-year waiver that
allowed certain railroads to perform automated tests on rail cars
every 24 months, and on the ability of automated testing
devices to “provide a more comprehensive testing of the
braking system[.]” 85 Fed. Reg. at 80,558–80,559.
The Unions, for their part, have never questioned the
accuracy of the data gathered under the waiver. See Unions
Comment 7, J.A. 365 (“[T]he data speaks for itself[.]”).
Neither do they dispute the effectiveness of the more modern
automated devices. Nor have they offered any other reason to
think that the Administration’s testing intervals pose a safety
concern. See Union Pac. R.R. Co. v. Pipeline & Hazardous
Materials Safety Admin., 953 F.3d 86, 90 (D.C. Cir. 2020) (A
petitioner “must point to some evidence to substantiate its
claim.”); Unions Comment 7–8, J.A. 365–366. And as long as

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the rule ensures safety—which the record supports—any
“windfall” the Final Rule might also grant to the railroads is
neither here nor there. Unions Opening Br. 26.2
The Unions broadly object to the Administration’s
decision to codify waivers without retaining certain oversight
measures such as “recordkeeping and transparency
requirements[,]” and “a testing committee[.]” Unions Opening
Br. at 17, 25. But because the Unions did not raise these
objections during the rulemaking, see Unions Comment 1–10,
J.A. 359–368, they are forfeited, Advocates for Highway &
Auto Safety v. Federal Motor Carrier Safety Admin., 429 F.3d
1136, 1150 (D.C. Cir. 2005).
d
The Unions argue that the Administration erred by
declining to classify air repeater units and air flow method
indicators as locomotive appurtenances. A locomotive
appurtenance is “an integral or essential part of a completed
locomotive[.]” Southern Ry. Co. v. Lunsford, 297 U.S. 398,
402 (1936); accord Straub v. Burlington N. Santa Fe Ry. Co.,
909 F.3d 1280, 1288 n.9 (10th Cir. 2018). By statute and
regulation, a “locomotive * * * and its parts and
appurtenances” must be “in proper condition and safe to
operate without unnecessary danger of personal injury[,]” 49
2 We note that the Unions did not object to the automated test
interval in their comment, see Unions Comment 7–8, J.A. 365–366,
although another labor organization did, 85 Fed. Reg. at 80,559. For
that reason, we treat the issue as not forfeited. See Natural Res. Def.
Council, Inc. v. EPA, 824 F.2d 1146, 1151 (D.C. Cir. 1987) (en banc)
(“[C]ourts have waived exhaustion if the agency has had an
opportunity to consider the identical issues * * * raised by other
parties[.]”) (internal quotation marks and citation omitted).

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U.S.C. § 20701, (1); accord 49 C.F.R. § 229.7(a), (a)(1), and
so are subject to rigorous safety requirements, see generally 49
C.F.R. Part 229.
In the Final Rule, the Administration concluded that air
flow method indicators used to measure brake pipe leakage are
not locomotive appurtenances because their use is “optional[,]”
and thus “unnecessary for a locomotive to be in proper
condition and safe to operate.” 85 Fed. Reg. at 80,557 (internal
quotation marks omitted). And the Administration declined to
classify air repeater units that feed additional air into the train’s
brake pipe as locomotive appurtenances because they are more
“akin to” end-of-train devices that “receive[] commands but
[are] not a component of a locomotive.” Id. at 80,555–80,556.
The Administration also pointed out that the use of air repeater
units, like air flow method indicators, is “optional[.]” Id. at
80,555. This was a textually rooted and logically sound
explanation.
The Unions maintain that the Administration “simply
ignored” their comment that air repeater units should be
subjected to the same inspection standards as locomotives.
Unions Opening Br. 28. That is incorrect. The Administration
observed that an air repeater units “share[] features with both
locomotives and freight cars,” and so decided that while the
units themselves are not locomotive appurtenances, their
“components that are similar to * * * locomotive
[appurtenances],” such as those that “compress air, modulate
the brake pipe, or otherwise control the train’s movement[,]”
“must be inspected in accordance” with the standards
governing locomotives. 85 Fed. Reg. at 80,556.

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e
The Final Rule revised two rules governing extended haul
trains—that is, trains that may travel up to 1,500 miles between
brake tests and inspections. 85 Fed. Reg. at 80,557. First, the
Final Rule lifted the requirement that operators disclose what
equipment those trains haul. Id. Second, it gave railroads
flexibility to designate different inspection and test locations in
emergencies. Id. The Administration explained that (i) there
was no safety reason to require operators to report the
equipment in extended haul trains, and (ii) permitting railroads
to designate new inspection and test locations in emergencies
promotes “flexib[ility]” and “regulatory certainty,” while
maintaining the status quo “would provide no safety benefit.”
Id.
The Unions contend that those changes arbitrarily made
“oversight more difficult.” Unions Opening Br. 28. But they
forfeited this objection by failing to raise it before the agency.
Advocates for Highway & Auto Safety, 429 F.3d at 1150; see
Unions Comment 6–7, J.A. 364–365.
f
Finally, the Unions object to certain changes the
Administration made to the rules governing brake tests for
tourist, scenic, historic, and excursion railroads. We lack
jurisdiction to hear this challenge because the Unions have not
established their standing to raise it.
“[S]tanding is an essential and unchanging part of the case-
or-controversy requirement of Article III.” Lujan v. Defenders
of Wildlife, 504 U.S. 555, 560 (1992). The “‘irreducible
constitutional minimum’ of standing consists of three
elements”: injury in fact, causation, and redressability.

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Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016) (quoting
Lujan, 504 U.S. at 560). A union “assert[ing] associational
standing on behalf of its members” must demonstrate that “at
least one [u]nion member meets all three requirements for
individual standing.” Utility Workers Union of America Loc.
464 v. FERC, 896 F.3d 573, 577 (D.C. Cir. 2018). When
petitioning for review of agency action, the petitioner “must
either identify in th[e] record evidence sufficient to support its
standing” or “submit additional evidence to the court of
appeals.” Sierra Club v. EPA, 292 F.3d 895, 899 (D.C. Cir.
2002).
Here, the Unions have failed to demonstrate that any of
their members were injured by the Administration’s changes to
the brake test rules for tourist, scenic, historic, and excursion
railroads. They have neither identified record evidence nor
submitted new evidence to this court showing that they have
members who work on these railroads. Quite the opposite, at
oral argument, the Unions conceded that it was “probably
accurate” that they lacked standing “[a]s to the tourist
railroads[.]” Oral Arg. Tr. 11:5–6. To be sure, the Unions
assert in their reply brief that their members work on these
railroads. See Unions Reply Br. 7. But such a “bare
assertion[]” is insufficient to demonstrate standing to obtain
relief through a petition for review. Utility Workers, 896 F.3d
at 578.3
3 For this same reason, counsel’s statement at argument that
Union members work on “short-line railroads,” Oral Arg. Tr. 11:1–
2, is too little too late to demonstrate standing, even assuming such
railroads are affected by the regulatory changes for tourist, scenic,
historic, and excursion railroads.

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2
Next, the Unions challenge parts of the Final Rule related
to end-of-train devices, with a bit more success.
a
The Unions object to the Administration’s decision to no
longer cap the time interval between calibration tests
performed on end-of-train devices’ telemetry equipment, and
“instead to require telemetry equipment be tested and
calibrated in accordance with its manufacturer’s specifications
and procedures[.]” 85 Fed. Reg. at 80,561. Specifically, the
Unions argue that the Administration fell short of its safety
mandate by eliminating the calibration interval not only for
end-of-train devices with automatic self-calibration
technology, but also for older, legacy devices without such
capabilities.
We agree that the Administration acted arbitrarily and
capriciously by failing to address the safety consequences of its
decision for end-of-train devices that lack self-calibration
technology.
End-of-train devices “must be tested in some fashion to
verify that they are operating within the manufacturer’s
specification with regard to radio frequency, signal strength,
and modulation and do not require recalibration.” Brake
System Safety Standards for Freight and Other Non-Passenger
Trains and Equipment, 66 Fed. Reg. 4,104, 4,184 (Jan. 17,
2001). After all, reliable “radio communication between the
controlling locomotive and the [end-of-train] device is critical
to proper brake functioning.” Final Rule, 85 Fed. Reg. at
80,551.

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In the face of the safety concern posed by telemetry
equipment in need of calibration, the Administration made no
express findings at all regarding the safety of its regulatory
change as applied to legacy devices, even though its prior
calibration rule had “attained” and maintained a high “level of
safety[.]” 85 Fed. Reg. at 80,561. Yet “[w]hen Congress
requires an agency to consider something, we ask whether the
agency has reached an express and considered conclusion
pursuant to the statutory mandate.” Cigar Ass’n of America v.
FDA, 964 F.3d 56, 61 (D.C. Cir. 2020) (internal quotation
marks and citation omitted). The Administration failed to give
safety any apparent consideration at all in this part of the Final
Rule, let alone afford safety the “highest priority,” as the law
requires. 49 U.S.C. § 103(c).
To be sure, the Administration concluded that self-
calibrating devices, in light of their advanced technology and
record of success under a waiver from the calibration interval,
“ensure[] better overall safety” than human calibration. 85
Fed. Reg. at 80,561. But the Administration made no similar
findings for non-self-calibrating end-of-train devices, which is
equally affected by its rule change. See id.
The Administration offered three reasons for its decision,
none of which is sufficient to show it prioritized safety.
First, the Administration said that it “d[id] not expect
manufacturers to change [calibration] intervals significantly”
for legacy devices. 85 Fed. Reg. at 80,561. Maybe. But that
fails to explain how abandoning a calibration requirement that
had achieved a high “level of safety[,]” id., continues to ensure
safe railroad operations.
Second, the Administration noted that manufacturers must
“submit an annual report to [the Administration] on inoperative

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or malfunctioning equipment.” Admin. Br. 15; see also 85 Fed.
Reg. at 80,561; 49 C.F.R. § 232.409(f)(2). While reporting
safety problems after they arise may help reduce them going
forward, it does nothing to prevent them in the first place.
Third, the Administration observed that “the number of
legacy devices * * * is consistently dwindling over time.” Oral
Arg. Tr. 15:13–15; see also 85 Fed. Reg. at 80,561 (describing
end-of-train devices without self-calibration capabilities as “a
technology the industry no longer produces”). That may be
true. But thousands of these devices remain in operation,
which means there are thousands of potential safety risks on
the rails. See Oral Arg. Tr. 15:17–16:4.
Nothing in the Administration’s explanation amounts to an
“express and considered conclusion” regarding this safety
issue, let alone a reasonable one. Cigar Ass’n of America, 964
F.3d at 61 (citation omitted). And the Administration offered
no other explanation for how jettisoning a safety rule in favor
of manufacturers’ self-regulation promotes safe rail operations.
On the contrary, the Administration touted “the level of safety
attained with calibrations performed at least every
368[ ]days”—that is, the safety achieved under its abandoned
rule. 85 Fed. Reg. at 80,561.
Because the Administration failed to “reasonably address”
the safety concerns implicated by its decision to eliminate the
calibration interval for legacy telemetry equipment, see Flyers
Rights Educ. Fund, 864 F.3d at 744, it did not act
“consistent[ly] with consideration of ‘safety as the highest
priority[,]’” Transportation Div., 10 F.4th at 876 (quoting 49
U.S.C. § 103(c)). So we remand this portion of the Final Rule
to the Administration to address the safety consequences of its
rule change for non-self-calibrating end-of-train devices.

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b
The Unions next object to the Administration’s decision
not to shorten the amount of time an end-of-train device’s rear
unit can be out of communication with its front unit before the
device triggers an alert to the crew to reduce the train’s speed.
We find no error in the Administration’s decision not to make
such a change.
At the Administration’s request, the National
Transportation Safety Board and the Unions submitted
proposals to shorten the length of a communication loss
between the end-of-train device and the locomotive necessary
to alert the crew. 85 Fed. Reg. at 80,551. The Administration,
however, declined to adopt these proposals. Id. It instead
imposed additional training requirements “to ensure that
employees who operate [end-of-train] equipment are trained in
the limitations and proper use of the equipment’s emergency
application signal and loss of communications indicator.” Id.
Although the Administration “agree[d] in principle with the
desire * * * to minimize the potential impact of
communications losses[,]” the “thousands of telemetry systems
in use throughout the railroad industry” meant “the costs of
requiring * * * a change” of the sort proposed by the Board and
the Unions “would be significant[,]” and, on the other side of
the ledger, the Administration “d[id] not currently have
sufficient data to determine the likely resulting benefits.” Id.
The Administration concluded that, “because the potential
impacts” of the proposals were “not yet understood[,]” it would
be “premature” to adopt them. Id.
The Administration reasonably elected to hold off on
changing the rule in the absence of adequate information to
properly assess the safety benefits and disadvantages of doing
so. The Unions’ argument that the Administration

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“abdicat[ed]” its safety duty just assumes that the Board’s and
the Unions’ proposals would, in fact, promote safety—a
conclusion the Unions failed to substantiate, and the
Administration was not able to reach on the record before it.
Unions Opening Br. 29.
c
The Unions also assert that the Administration failed to
respond to a comment they made regarding the agency’s
decision to decrease the minimum height of marker lamps on
end-of-train devices from 48 inches above the top of the rail to
“above the coupler,” approximately 40 inches above the top of
the rail. 85 Fed. Reg. at 80,550. The Unions are mistaken.
Agencies must “respond[] to significant points raised by
the public” during rulemaking. Home Box Off., Inc. v. FCC,
567 F.2d 9, 35–36 (D.C. Cir. 1977) (per curiam) (footnote
omitted); accord Carlson v. Postal Regul. Comm’n, 938 F.3d
337, 345 (D.C. Cir. 2019). In their comment, the Unions
proposed that marker lamps be visible from 1.5 miles away,
given the distance long freight trains require to come to a stop.4
The Administration acknowledged and responded to the
Unions’ concern. It said that “[b]ased on * * * testing, the data
developed through * * * waivers, and [its] experience, * * * on
flat, tangent track, [end-of-train] marker lights at 48 inches and
40 inches are visible from 1.5 miles away.” 85 Fed. Reg. at
80,549. It then acknowledged that “there can * * * be some
vertical undulation in the track or curves that could reduce the
4 An agency need only respond to comments “that can be
thought to challenge a fundamental premise underlying the proposed
* * * decision.” Carlson, 938 F.3d at 344 (internal quotation marks
and citation omitted). We assume for argument’s sake that the
Unions’ comment required a response.

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visibility below 1.5 miles.” Id. Nevertheless, based on five
years of operations under waivers, the Administration found
“no discernable visibility difference” for marker lamps at lower
heights, adding that “no accidents attributed to the lowered
marker lamp height * * * have been reported through the
[agency’s] accident reporting system.” Id.
That was an adequate response. Beyond that, the Unions
have affirmatively waived any substantive challenge to the
marker lamp height because, in their comment, they said they
had “no quarrel” with the agency’s proposal. Unions Comment
3, J.A. 361.
d
Next, the Unions object on safety grounds to the
Administration’s inclusion of battery changes for end-of-train
devices on the list of functions that certain railroad workers can
perform without blue signal protection.
The Administration, however, reasonably concluded that
this change would be consistent with safety because it
“incorporates two longstanding waivers granted * * * over a
decade ago and under which each Class I railroad has operated
successfully, with no reports of related injuries or incidents.”
85 Fed. Reg. at 80,549.
The Unions maintain that the Administration “summarily
and arbitrarily” dismissed their argument that a worker
replacing an end-of-train device’s battery without blue signal
protection might face risk from another moving train. Unions
Opening Br. 21. But, as the Administration explained, the
Unions offered no reason “why the alleged risk associated with
a utility employee replacing an [end-of-train] device’s battery
is any different from the risks associated with a utility

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employee performing any of the * * * functions” already
exempted by regulation from blue signal protection. 85 Fed.
Reg. at 80,548. That sufficed.
e
Finally, the Unions argue that the Administration’s
codification of waivers regarding power sources for end-of-
train devices was “so slipshod as to be arbitrary and capricious”
because, they say, the Final Rule contains certain incorrect
citations, and a comment by one of the Unions opposing one of
the waivers does not appear online. Unions Opening Br. 19–
20.
That argument is meritless. Such purported technical
missteps have no logical connection to the consideration of on-
the-ground safety that the statute mandates.
III
The Unions claim that the entire rule must be set aside
because, in their view, the Administration improperly denied
them an opportunity to petition for reconsideration of the Final
Rule. Even assuming an error occurred, it was harmless.
In general, a petition for reconsideration of an
Administration rule “must be submitted not later than 60 days
after publication of the rule in the Federal Register, or 10 days
prior to the effective date of the rule, whichever is the earlier.”
49 C.F.R. § 211.29(a). But because the Administration made
the Final Rule effective immediately upon publication, 85 Fed.
Reg. at 80,544, it was impossible for the Unions to file a timely
petition.

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The Administration responds that the Unions could have
filed an untimely reconsideration petition, which the
Administration could have allowed if “good cause [were]
shown,” 49 C.F.R. § 211.29(a), and it suggests that
“impossibility of compliance” with the deadline would furnish
good cause. Admin. Br. 44.
Because the Unions have not shown that they were
prejudiced in any way by not being able to seek timely
reconsideration, we need not resolve either whether the Unions
could have filed an untimely petition for reconsideration or
whether the Administration erred in denying them an
opportunity to petition.
The APA instructs courts to take “due account * * * of the
rule of prejudicial error.” 5 U.S.C. § 706; see also PDK Labs.
Inc. v. DEA, 362 F.3d 786, 799 (D.C. Cir. 2004). So we will
not set aside agency action “based on procedural error unless
the errors alleged could have affected the outcome.” Zevallos
v. Obama, 793 F.3d 106, 115 (D.C. Cir. 2015). “The burden to
demonstrate prejudicial error is on the party challenging
agency action.” Jicarilla Apache Nation v. Department of
Interior, 613 F.3d 1112, 1121 (D.C. Cir. 2010).
The Unions have failed to show any harm from this
supposed agency misstep. They submitted a lengthy comment
on the proposed rule that the Administration fully considered.
Their briefs identify no “additional [argument] that they would
have made” on rehearing that they did not or could not have
included in their comments. United States Telecom Ass’n v.
FCC, 400 F.3d 29, 41 (D.C. Cir. 2005). Nor do they argue that
“repeating the comments [they] made” would have changed the
outcome. Portland Cement Ass’n v. EPA, 665 F.3d 177, 192
(D.C. Cir. 2011) (per curiam). Because the Unions have not
shown that the filing of a reconsideration petition would have

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changed anything, any procedural error was harmless and
vacatur is unwarranted.
IV
Lastly, the Unions claim that the Final Rule must be
vacated because it was issued after the statutory deadline. Not
at all.
Because the statute provides that “[t]he time limit for
disposition of a proceeding” to regulate railroad safety “may
not be more than 12 months after the date it begins[,]” 49
U.S.C. § 20103(b), the Administration must complete
“rulemaking proceedings” within a year, 49 C.F.R. § 211.13.
For rulemaking proceedings “initiated as the result of the
granting of a rulemaking petition,” the clock starts when “the
petition [is] filed[.]” Id. Proceedings in this matter began when
the Association of American Railroads filed its rulemaking
petition on July 12, 2018. The Final Rule, which granted that
petition, issued on December 11, 2020—more than two years
later.5
We recently held, however, that “[m]issing this procedural
deadline * * * does not require vacating the rule.”
Transportation Div., 10 F.4th at 873. That is because,
5 The Administration suggests the Final Rule was timely. It
observes that its deadline is “12 months after the petition was filed”
only for actions “initiated as the result of the granting of a rulemaking
petition[.]” 49 C.F.R. § 211.13. In its view, this provision does not
apply here because “the rulemaking was not initiated solely because
of [the Association’s] petition[,]” Admin. Br. 45–46, and so the
deadline instead was 12 months after notice of the proceeding was
published in the Federal Register, 49 C.F.R. § 211.13, which it met.
We do not address this argument because even if the Final Rule was
untimely issued, that is not grounds for vacatur.

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“[a]lthough the Act uses language suggesting the deadline is
mandatory[,]” id. at 874, “the Supreme Court has declined to
treat a statutory direction that an agency shall act within a
specified time, without more, as a jurisdictional limit
precluding action later” by the agency, National Petrochemical
& Refiners Ass’n v. EPA, 630 F.3d 145, 154 (D.C. Cir. 2010)
(internal quotation marks omitted) (quoting Barnhart v.
Peabody Coal Co., 537 U.S. 149, 158 (2003)). Here, the
“statutory language” and “the relevant context” neither
“specify the consequences for missing a deadline” nor
otherwise “suggest[] that vacatur should be the remedy for the
agency’s failure to wrap up a regulatory action within twelve
months.” Transportation Div., 10 F.4th at 874 (internal
quotation marks omitted) (quoting Dolan v. United States, 560
U.S. 605, 610 (2010)). In such a situation, “the federal courts
will not in the ordinary course impose their own coercive
sanction.” Barnhart, 537 U.S. at 159 (citation omitted). The
Unions have not identified any basis for departing from that
rule here.
We nonetheless repeat what we said in Transportation
Division: “When Congress provides * * * a short period for
rulemaking, it indicates that the agency should move with
dispatch.” 10 F.4th at 874. If the agency fails to do so, the
proper remedy is for an aggrieved party to seek a court order
“compel[ling] agency action unlawfully withheld or
unreasonably delayed[.]” 5 U.S.C. § 706(1).
V
The petition for review is granted in part, denied in part,
and dismissed in part. The Final Rule is remanded in part to
the Federal Railroad Administration.
So ordered.

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