concurring:
Although I agree with the majority, I do so with reluctance.
The January 1991 NPRM did not even hint that the FRA might select a regulatoiy approach by which OSHA alone would apply its own standards. The NPRM listed four possible enforcement methods: “(1) Develop and enforce independent FRA standards, (2) adopt and enforce existing OSHA standards, (3) adopt enforcement rules only by which FRA would enforce OSHA standards, or (4) some combination of these.” 56 Fed.Reg. 3436 (1991). None of the approaches included OSHA enforcement. Nevertheless, notwithstanding that our “logical outgrowth” precedent is stretched almost to its breaking point here, I believe it rescues the FRA from remand.
Moreover, according to the NPRM, the FRA intended to extend its jurisdiction over working conditions regarding railroad bridge worker safety. “After considering the necessity of standards for work on bridges ... FRA now believes that such work may be so much a part of railroad operations that FRA should address this issue in its own regulatory program.” Id. at 3435. The FRA thus “propose[d] to extend its authority to all aspects of railroad bridge worker safety.” *590Id. at 3436 (emphases added).1 Here, what saves section 214.101(d) from violating the notice and comment requirements of section 553 of the APA is its broad- exclusionary language: OSHA’s residual authority is resurrected but only as to “[a]ny working conditions involving the protection of railroad employees working on railroad bridges not within the subject matter addressed by [Chapter II].” 49 C.F.R. § 214.101(d) (emphasis added). Chapter II encompasses all railroad regulations promulgated by the FRA, including those that fall under the three “fields”2 and the railroad bridge “working surfaces”3 first designated in the FRA’s 1978 Policy Statement. Although the FRA began its 1991 rulemaking with great promise of comprehensiveness, it reduced its efforts to the “at a minimum” requirements of the 1988 and 1992 amendments plus regulations regarding scaffolding and head, foot, eye and face protection.4 It then ceded the remainder, including enforcement, to OSHA. The remainder, it turns out, is apparently negligible, at least with respect to railroad bridge worker safety.
There is the possibility that OSHA, at a future date, will regulate a working condition not within the subject matter addressed by Chapter II but within the FRA’s exercise of jurisdiction over railroad operations as set forth in the 1978 Policy Statement. See 43 Fed.Reg. 10,586 (1978). In that case, we would again face the notice problem. Far from merely “representing] the FRA’s thoughts about the effect of its non-comprehensive regulatory scheme on OSHA’s authority to regulate railroads,” see Dissent at 590-91, section 214.101(d) might have effected a rescission of FRA jurisdiction over that particular working condition — without providing the requisite notice. This possibility is the source of my reluctance. However, the petitioners, which represent the railroad industry, have been unable to identify such a working condition. Accordingly, because the possibility seems so remote, I agree that the petition for review should be denied.
. "By affirmatively asserting regulatory authority over all aspects of railroad bridges, both operational and otherwise, FRA can tailor relevant OSHA regulations to take account of the peculiarities of the railroad environment." 56 Fed. Reg. 3436 (1991) (emphasis added).
. "The overall FRA program to assure the safety of railroad operations may be generally subdivided into three fields: (1) Track, roadbed, and associated devices and structures, (2) equipment, and (3) human factors. FRA has now exercised its statutory authority with respect to each of these regulatory fields by actual rulemaking.” 43 Fed.Reg. 10,586 (1978).
. Id. at 10,585.
. See 49 C.F.R. §§ 214.109 (scaffolding), 214.113 (head protection), 214.115 (foot protection), and 214.117 (eye and face protection).