 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued April 4, 2013                    Decided June 11, 2013

                         No. 12-1298

                  CHLORINE INSTITUTE, INC.,
                        PETITIONER

                               v.

        FEDERAL RAILROAD ADMINISTRATION, ET AL.,
                     RESPONDENTS


           On Petition for Review of a Final Rule
           of the Federal Railroad Administration


    Paul M. Donovan argued the cause for the petitioner.
     Mark W. Pennak, Attorney, United States Department of
Justice, argued the cause for the respondents. Stuart F. Delery,
Principal Deputy Assistant Attorney General, Michael Jay
Singer, Attorney, Paul M. Geier, Assistant General Counsel,
United States Department of Transportation, Peter J. Plocki,
Deputy Assistant General Counsel, and Christopher Perry and
Rebecca S. Behravesh, Trial Attorneys, Federal Railroad
Administration, were on brief.
    Thomas H. Dupree Jr., Michael R. Huston, Louis P.
Warchot and Michael J. Rush were on brief for amicus curiae
Association of American Railroads in support of the
respondents.
                                 2

    Before: HENDERSON, BROWN and KAVANAUGH, Circuit
Judges.
    Opinion for the Court filed by Circuit Judge HENDERSON.
    Concurring Opinion filed by Circuit Judge KAVANAUGH.
     KAREN LECRAFT HENDERSON, Circuit Judge: The Chlorine
Institute, Inc. (Institute)1 challenges the final rule promulgated
by the Federal Railroad Administration (FRA) to implement
section 104 of the Rail Safety Improvement Act of 2008 (Act),
which requires that a qualifying rail carrier submit an
implementation plan to install a “positive train control” (PTC)
system2 no later than December 31, 2015 on certain tracks used
for passenger service or for transporting “poison- or toxic- by-
inhalation” hazardous material (PIH or TIH), such as chlorine,
Pub. L. No. 110-432 § 104(a)(1), 122 Stat. 4848, 4857 (Oct. 16,
2008) (49 U.S.C. §20157(a)(1)). Positive Train Control Systems
(RRR), 77 Fed. Reg. 28,285 (May 14, 2012) (2012 Final Rule).
The 2012 Final Rule establishes 2008 as the baseline year for
determining whether tracks carry passengers or PIH so as to
require PTC—subject to an exclusion/removal exception for
segments that will no longer carry such traffic as of the
December 31, 2015 implementation deadline. The Institute
challenges as arbitrary and capricious and contrary to
congressional intent FRA’s decision to omit from the 2012 Final
Rule a two-part risk assessment test a carrier had been required


    1
     The Institute is a trade association representing producers,
packagers, distributors, users and suppliers of chlorine and related
products.
    2
       A PTC system is “a system designed to prevent train-to-train
collisions, over-speed derailments, incursions into established work
zone limits, and the movement of a train through a switch left in the
wrong position.” 49 U.S.C. § 20157(i)(3); see 49 C.F.R. subt. B, ch.
II, pt. 236, Subpt. I.
                                 3

to meet to qualify for exclusion/removal under two previous
PTC rules. Because the Institute has not established that its
members now face a present or imminent injury from the 2012
Final Rule’s omission, we conclude its challenge is not ripe.
                                 I.
      In 2008, the Congress enacted the Act with the intent, inter
alia, “to prevent railroad fatalities, injuries, and hazardous
materials releases.” Pub. L. No. 110-432, 122 Stat. at 4848.
Section 104 of the Act governs the “[i]mplementation of
positive train control systems” and requires that no later than 18
months after its enactment date of October 16, 2008, each Class
I railroad carrier3 and any entity providing regularly scheduled
intercity or commuter rail passenger transportation develop and
submit to the Department of Transportation
    a plan for implementing a positive train control system
    by December 31, 2015, governing operations on—
             (A) its main line over which intercity rail
         passenger transportation or commuter rail
         passenger transportation, as defined in section
         24102, is regularly provided;
              (B) its main line over which poison- or toxic-
         by-inhalation hazardous materials, as defined in
         [49 C.F.R. §§] 171.8, 173.115, and 173.132 . . . ,
         are transported; and
             (C) such other tracks as the Secretary [of
         Transportation] may prescribe by regulation or
         order.


    3
     A Class I carrier is one having annual operating revenues of
$250 million or more. Commuter Rail Div. of Reg’l Transp. Auth. v.
Surface Transp. Bd., 608 F.3d 24, 28 n.2 (D.C. Cir. 2010) (citing 49
C.F.R. § 1201.1-1).
                                 4

49 U.S.C. § 20157(a)(1).4 Section 104 further (1) authorizes the
Secretary to “provide technical assistance and guidance to
railroad carriers in developing the [required PTC] plans,” (2)
requires the Secretary to conduct an annual review to ensure the
carriers’ compliance therewith and to report to the Congress no
later than December 31, 2012 on the carriers’ progress and (3)
authorizes the Secretary to assess civil penalties for violating
any of section 20157’s provisions. Id. § 20157(b)-(e). In
addition, section 104(g) vests the Secretary with broad
implementation authority:
    The Secretary shall prescribe regulations or issue
    orders necessary to implement this section, including
    regulations specifying in appropriate technical detail
    the essential functionalities of positive train control
    systems, and the means by which those systems will be
    qualified.
Id. § 20157(g).5 Accordingly, in July 2009, FRA issued a notice
of proposed rulemaking to implement the mandate. Positive
Train Control Systems, 74 Fed. Reg. 35,950 (July 21, 2009).
     FRA has since promulgated three successive final rules
governing PTC. The first rule, issued in January 2010,
established calendar year 2008 as the baseline year for
determining whether a main line carries either passenger or PIH
traffic so as to require PTC. Positive Train Control Systems, 75
Fed. Reg. 2598, 2700 (Jan. 15, 2010) (January 2010 Final Rule)
(49 C.F.R. § 236.1005(b)(2) (2010)). Recognizing, however,


    4
      “The term ‘main line’ means a segment or route of railroad
tracks over which 5,000,000 or more gross tons of railroad traffic is
transported annually . . . .” 49 U.S.C. § 20157(i)(2).
    5
     The Secretary delegated to the FRA his authority to implement
the Act. 49 C.F.R. § 1.49(oo) (2009), recodified at id. § 1.89(b)
(2012).
                                   5

that routing could change between the 2008 baseline and the
Act’s December 31, 2015 PTC implementation deadline, the
January 2010 Final Rule permitted a railroad to request the
“[e]xclusion or removal of track segments from [the] PTC
baseline . . . based upon changes in rail traffic such as reductions
in total traffic volume or cessation of passenger or PIH service.”
Id. at 2701 (49 C.F.R. § 236.1005(b)(4)(I) (2010)). “In the case
of cessation of PIH traffic over a track segment,” the request
was to be approved “upon a showing by the railroad that . . .
[t]here is no remaining local PIH traffic expected on the track
segment” and that the PTC exclusion/removal satisfied a two-
part test, which included: (1) an “alternative route” analysis
requiring that alternative route(s) to the excluded tracks be
“shown to be substantially as safe and secure” as the excluded
tracks; and (2) a “residual risk” analysis, requiring that, after
cessation of PIH traffic, “the remaining risk associated with
PTC-preventable accidents” not exceed the average comparable
risks of other tracks required to be PTC-equipped. Id. at 2701-
02 (49 C.F.R. § 236.1005(b)(4)(I) (2010), superseded by 49
C.F.R. § 236.1020 (effective Nov. 26, 2010)).6
     Finally, the January 2010 Final Rule warned:
     This is a final rule; however, FRA has identified
     specific provisions for which we are considering
     making changes to the final rule, if warranted by the
     public comments received. We expect to publish our
     response to those comments, including any possible


     6
      The two-part test was new in the January 2010 Final Rule. The
proposed rule had simply “said that changes from the 2008 base could
be granted if ‘consistent with safety.’ ” January 2010 Final Rule, 75
Fed Reg. at 2619. FRA explained that the two-part test “fleshes out
the ‘consistent with safety’ notion contained in the proposed rule with
the desired objective of providing greater predictability, transparency,
and consistency in decision making.” Id. at 2620.
                                6

    changes to the rule made as a result of them, as soon as
    possible following the end of the comment period.
    However, the limited areas of this rule open for
    additional comment do not affect the requirement for
    railroads to prepare and submit plans in accordance
    with the deadlines established in this final rule.
Id. at 2598. In particular, it advised:
    FRA will continue to seek comments limited to
    increasing the clarity, certainty, and transparency of the
    criteria governing the removal from a PTC[
    Implementation Plan] (and therefore from the
    requirement to install PTC) of any track segments on
    which PTC systems have yet to be installed for which
    a railroad seeks relief from the requirement to install
    PTC. . . . Any further comments should be limited to
    the scope of the issues indicated in this preamble to
    which FRA seeks further comments.
Id. at 2605.
     After further comments and a hearing, FRA promulgated its
second final rule in September 2010. Positive Train Control
Systems, 75 Fed. Reg. 59,108 (Sept. 27, 2010). (September 2010
Final Rule). The September 2010 Final Rule left the
exclusion/removal provision largely unchanged but moved it to
a separate, newly promulgated regulation, 49 C.F.R. § 236.1020
(“Exclusion of track segments for implementation due to
cessation of PIH materials service or rerouting.” (2010-11)). 75
Fed. Reg. at 59,117. Under the reworded (but substantively
unchanged) regulation, each carrier was required to show that
there was “no remaining local PIH materials traffic expected on
the track segment” and that the rerouting passed both the
“alternative route” and the “residual risk” prongs of the
qualifying test. Id. at 59,117 (49 C.F.R. § 236.1020(b)(1)(-3)
(2010)).
                                7

     The Association of American Railroads (AAR) petitioned
this court to review both the January 2010 Final Rule and the
September 2010 Final Rule, challenging, inter alia, the
“backward-looking” 2008 baseline. See Pet’r Br., Ass’n of Am.
R.Rs. v. Fed. R.R. Admin., Nos. 10-1198 & 10-1308, at 36 (D.C.
Cir. Nov. 10, 2010). On March 2, 2011, AAR and FRA reached
a settlement, agreeing to move to hold the case in abeyance
pending a new rulemaking proceeding. On March 3, 2011, we
granted their motion. Ass’n of Am. R.Rs. v. Fed. R.R. Admin.,
Nos. 10-1198 & 10-1308 (D.C. Cir. filed Mar. 3, 2011) (per
curiam order).
     Pursuant to the settlement, in August 2011, FRA filed a new
Notice of Proposed Rulemaking to consider eliminating the two-
part test for exclusion/removal from the 2008 baseline. Positive
Train Control Systems, 76 Fed. Reg. 52,918, 52,921 (Aug. 24,
2011). In May 2012, FRA published the 2012 Final Rule, which
did precisely that, stating in the preamble: “Having considered
the public comments on the [Notice of Proposed Rulemaking],
FRA is promulgating this final rule eliminating the two
qualifying tests.” 77 Fed. Reg. at 28,286. FRA explained that
retaining the two-part test “could potentially require PTC system
implementation at a great cost to the railroads on lines that will
not carry PIH materials traffic as of December 31, 2015.” Id. at
28,298.      Accordingly, under the 2012 Final Rule, an
exclusion/removal request is approved upon a showing that, as
of December 31, 2015, there will be no passenger service or PIH
traffic on the tracks. Id. at 28,305 (codified at 49 C.F.R.
§ 236.1005(b)(4)(ii) (2012)). The Institute timely petitioned for
review.
                               II.
     Ordinarily, we would review FRA’s interpretation of the
Act under Chevron USA Inc. v. Natural Resources Defense
Council, 467 U.S. 837 (1984), and FRA’s application of the
statute pursuant to the Administrative Procedure Act, 5 U.S.C.
                                8

§§ 701 et seq. See Ass’n of Am. R.Rs. v. Dep’t of Transp., 38
F.3d 582 (D.C. Cir. 1994). Here, however, we lack jurisdiction
to consider the Institute’s arguments on the merits because its
challenge is not ripe. See Exxon Mobil Corp. v. FERC, 501 F.3d
204, 207 (D.C. Cir. 2007) (“Before we reach the merits . . . , we
consider whether the issue is ripe for judicial review. . . . The
question of ripeness goes to our subject matter jurisdiction, and
thus we can raise the issue sua sponte at any time.” (quotation
marks omitted)).
       The ripeness doctrine is “designed ‘to prevent the courts,
through avoidance of premature adjudication, from entangling
themselves in abstract disagreements over administrative
policies, and also to protect the agencies from judicial
interference until an administrative decision has been formalized
and its effects felt in a concrete way by the challenging parties.”
Nat’l Park Hospitality Ass’n v. Dep’t of Interior, 538 U.S. 803,
807-08 (2003) (quoting Abbott Labs. v. Gardner, 387 U.S. 136,
148–149 (1967)). “Part of the doctrine is subsumed into the
Article III requirement of standing, which requires a petitioner
to allege inter alia an injury-in-fact that is ‘imminent’ or
‘certainly impending.’ ” Am. Petroleum Inst. v. EPA, 683 F.3d
382, 386 (D.C. Cir. 2012); see Blanchette v. Conn. Gen. Ins.
Corps., 419 U.S. 102, 138 (1974) (“[I]ssues of ripeness involve,
at least in part, the existence of a live ‘Case or Controversy’
. . . .”); Wyo. Outdoor Council v. U.S. Forest Serv., 165 F.3d 43,
48 (D.C. Cir. 1999) (“Just as the constitutional standing
requirement for Article III jurisdiction bars disputes not
involving injury-in-fact, the ripeness requirement excludes cases
not involving present injury.”); Nat’l Treasury Emps. Union v.
United States, 101 F.3d 1423, 1427 (D.C. Cir. 1996) (“Ripeness,
while often spoken of as a justiciability doctrine distinct from
standing, in fact shares the constitutional requirement of
                                  9

standing that an injury in fact be certainly impending.”).7 The
Institute has failed this part of the ripeness test because it has not
demonstrated that it faces an imminent or certainly impending
injury.
     To establish such an injury, the Institute must show that “at
least one of its members ‘is under threat of suffering “injury in
fact” that is concrete and particularized [and] the threat must be
actual and imminent, not conjectural or hypothetical.’ ” Nat’l
Ass’n of Home Builders v. EPA, 667 F.3d 6, 12 (D.C. Cir. 2011)
(quoting Summers v. Earth Island Inst., 555 U.S. 488, 493
(2009)); see also Lujan v. Defenders of Wildlife, 504 U.S. 555,
560 (1992). The Institute claims its members are “directly
injured by FRA’s policy decision to no longer rely upon traffic
movements during 2008 as the basis for PTC Implementation
Plans [] and by the elimination of the two-part test and the
resulting ability of the railroads to restrict or eliminate chlorine
transportation by rail,” because PIH traffic will no longer be
able to travel over those tracks that a carrier does not equip with
PTC. Pet’r Br. 6; see also id. at 7-8 (citing “the injury imposed
by FRA in eliminating 2008 as the base year for determining
track segments requiring PTC, and eliminating the two-part test
allowing the nation’s major railroads to reduce the trackage over
which they carry chlorine and other TIH materials”); id. at 9
(“The causal relationship between the elimination of the 2008
base year and the two-part test was to injure chlorine and other
TIH shippers by limiting or eliminating their ability to ship their
products by rail.”). According to the Institute, the “most
immediate impact on TIH shippers, including chlorine shippers,
would be to severely limit or eliminate their ability to ship
product by rail, and thus to remain in the chlorine manufacturing


     7
     “Even if a case is ‘constitutionally ripe,’ though, there may also
be ‘prudential reasons for refusing to exercise jurisdiction.’ ” Am.
Petroleum Inst. v. EPA, 683 F.3d at 386.
                               10

and consuming business” Id. at 9 (emphasis added). But the
described impact is—at most—speculative. At this stage, we do
not know which track segments will be fitted with PTC under
the plans that are submitted by carriers and ultimately approved
by FRA—much less whether any Institute member’s ability to
ship PIH will be significantly affected because more tracks will
not require PTC under the 2012 Final Rule than would have
under the January 2010 and September 2010 Final Rules. Cf.
Id. (“No one can predict the result of each and every application
of the two-part test to any track segment . . . .”). Nor has the
Institute asserted any carrier has diminished—or is about to
diminish—any individual member’s shipping ability—only that
a carrier could do so. See, e.g., Id. at 8 (“[W]ith the passage of
the [Act] the railroads were inadvertently given the perfect
opportunity to restrict or eliminate chlorine shipments by rail.”
(emphasis added)); Reply Br. 13-14 (“[T]he railroads will be
permitted to avoid PTC installation on thousands of miles of rail
tracks. The absence of PTC on those tracks will prohibit the
Institute’s members from shipping chlorine over those tracks
and eliminate the ability for those members to market their
chlorine in the normal course of business.” (emphasis added)).
FRA acknowledges that eliminating the two-part test will result
in a “smaller map of PTC-equipped line segments,” causing
more rerouting of PIH traffic than under the 2010 rules. See
2012 Final Rule, 77 Fed. Reg. at 28,291. But rerouting—which
is a necessary consequence of the Congress’s decision to restrict
PIH traffic to PTC-equipped tracks—does not necessarily
“severely limit” or “eliminate” a chlorine shipper’s ability to
ship its product by rail—it simply requires a different shipping
route be used. At this point, we do not know how routing may
change—or whether the additional rerouting under the 2012
Final Rule will affect—an Institute member’s ability to transport
                                   11

chlorine.8 As the PTC Implementation Plan process advances
and its impact becomes clearer, such an injury may indeed
emerge and the Institute’s challenge may thereby ripen.9 It is
not ripe now.
     For the foregoing reasons, we dismiss the Institute’s petition
for lack of jurisdiction.
                                                            So ordered.


     8
       The picture is further blurred by the prospect that three separate
federal agencies may be involved in shaping it: (1) FRA, which
regulates PTC; (2) the Pipeline and Hazardous Materials Safety
Administration, which carries out “duties and powers related to
pipeline and hazardous materials transportation and safety,” 49 U.S.C.
§ 108(f), including overseeing rail carrier routing, 49 C.F.R. §
172.820; and (3) the Surface Transportation Board (STB), which
generally regulates rail carrier transportation, service and rates, see 49
U.S.C. § 11101. FRA insists that the STB’s exercise of its own
authority to enforce a railroad carrier’s statutory obligation to “provide
[] transportation or service on reasonable request,” id. § 11101(a), will
ensure the availability of rail carriage to PIH shippers. See Oral
Argument Recording at 37:50 (Apr. 4, 2013) (“Positive Train Control
takes a backseat to the common carriage requirement.”). We need not
unravel the tangled regulatory interaction but only note that it adds to
the unpredictability regarding future PIH transportation availability.
     9
     Under the 2012 Final Rule, third parties such as the Institute
“have an opportunity to express their views on the plans submitted
pursuant to the PTC rule.” 77 Fed. Reg. at 28,290. Under 49 C.F.R.
§ 236.1011(e):
     Upon receipt of a [PTC plan], FRA posts on its public web
     site notice of receipt and reference to the public docket in
     which a copy of the filing has been placed. FRA may
     consider any public comment on each document to the
     extent practicable within the time allowed by law and
     without delaying implementation of PTC systems.
     KAVANAUGH, Circuit Judge, concurring: I join the
Court’s opinion but add a point significant to my resolution of
the case. As was discussed at oral argument, the Surface
Transportation Board will ensure that chlorine shippers
continue to receive common-carrier transportation on
railroads when such transportation is reasonably requested.
See 49 U.S.C. § 11101(a) (“A rail carrier providing
transportation or service subject to the jurisdiction of the
Board under this part shall provide the transportation or
service on reasonable request.”). When the Board requires a
railroad to provide common-carrier service to chlorine
shippers, the railroad will have to allow the shipment and, if
necessary under the Rail Safety Improvement Act of 2008,
will have to equip the relevant track with positive train
control. With that understanding, I join the judgment and
opinion of the Court holding that the Chlorine Institute does
not at this time face an actual or imminent injury from the
2012 Final Rule.
