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002H2 annual basis until the petitioned action is found to be warranted or not. Id. $ 1533(b)(3) (B)(iii); 50 C.F.R. ~ 424.14(b)(4) (1992). If the finding on a listing action petition is that tbe petitioned action is warranted, the agency must promptly publish in the Federal Register a proposed regulation to implement the peri. tioned action, thus concluding the petition reo view process. 16 U.S.c. ~ 1533 (b)(3)(B)(ii) (1988); 50 C.F.R. ~~ 424.14 (b)(3)(ii) ( 1992). Ustlng Action Rulemaklng. Species may be listed, delisted, or reclassified either through the petition process discussed above or at the initiation of FWS/NMFS if adequate biological data warrants the action. ]n either case, the agency must publish a proposed rule in the Fed. eral Register to begin the listing status decision process. 16 U.S.c. ~ 1533(b)(5)(A)(i) (1988); 50 C.F.R. ~ 424.16(c)(1)(i) (1992). The agency must also supply notice directly to each state and foreign nation in which the species is believed to occur; to federal agencies, local au- thorities, and private individuals known to be affected by the rule; to such professional sci- entific organizations deemed appropriate; and to the affected public through newspapers. 16 U.S.c. ~~ 1533(b)(5)(A)(ii), 1533(B)-(D) (1988); 50 C.F.R. ~~ 424.16(c)(l)(ii)-(vi) (1992). The agency must accept public com. ment on the proposed rule for at least sixty days following such publication, and must hold at least one public hearing within forty-five days of publication if any person so requests. 16 U.S.c. ~ 1533(b)(5)(E) (hearing);.50 C.F.R. ~~ 424.16(c)(2)-(3) (1992) (comment pe. riod and hearing). Within one year after publishing the pro. posed rule, FWS/NMFS must either promulgate a final rule implementing the listing action, find that the listing action should not be made, with- draw the proposed rule if the available evi- dence does not adequately support either of those two actions, or extend the review period for no more than six months if there is dis- agreement regarding the sufficiency or accu- racy of the available biological data. 16 U.S.c. ~~ 1533(b)(6)(A)-(B) (1988); 50 C.F.R. ~~ 424 .17(a)( I )(i)-(iv) (1992). If the agency decides to list a species as threatened rather than endangered, the agency must decide which of several protective fealUres will apply to the species. Some of the ESA's prohibitory provi- sions and other requirements do not applyau. tomatically to threatened species, as they do for endangered species, see generally. Enos v. Marsh, 769 F.2d 1363, 1368-70 (9th Cir. 1985), but FWS/NMFS may apply the section 9(a) endangered species protections to threat. ened species. 16 U.S.C. ~ 1533(d). The FWS/ NMFS have extended most such protections to all threatened species under a general regula. tion applicable unless regulations for a partic- ular species or special permit terms provide otherwise. 50 C.F.R. ~ 17.31 (a). Critical Habitat Rulemaking. Like listing status actions, critical habitat designations or revisions are commenced either through the pe- tition process or at the initiative of FWS/NMFS. The procedures for critical habitat rulemakings differ from the listing stalUS rule making in only three significant respects. First, the proposed and final rule for critical habitat decisions must contain a map of the habitat area and, to the maximum extent practicable, a description of those public and private actjvitks that if un. dertaken may adversely modify the habitat or which themselves may be affected by the crit- ical habitat decision as a result of the protec- tions afforded such areas elsewhere in the ESA. 16 U.s.c. ~ 1533(b)(8) (1988); 50 C.F.R. ~ 424.18(a) (1992). Second, with respect to the proposed or ongoing actions identified in the proposed rule as possibly being affected by the proposed critical habitat decision, the FWS/ NMFS musr conduct an impact analysis consid- ering the economic and other effects of the pro- posed rule on such activities. 16 U.S.c. ~ IS33(b)(2) (1988); 50 C.F.R. ~ 424.19 (1992). Finally, although a final critical habitat designation rule should be published concur- rently with the rule listing the species involved, the FWS/NMFS may delay the critical habitat rulemaking after that date if it deems either that it is. essential to the conservation of the species that it be listed more prompTly, or that the crit- ical "habitat of the species is not determinable at the time of li'ting. 16 U.S.c. ~ 1533 (b)(6)(C) (1988); 50 C.F.R. ~424.17 (b) (1992). The critical habitat rulemaking process must be conduded no later than two years after publication of the proposed species.listing rule. By that date, to the maximum extent prudent and based on the data available at that time, the agency must publish the final rule designating the species' critical habitat. 16 U.S.c. ~ IS33(b)(6)(C)(ii) (1988); 50 C.F.R. ~ 424.17(b) (1992). Emergency Rulemaking. Notwithstand. ing the procedures required for petitions, list- ing actions, and critical habitat decisions, FWS/ NMFS at any time may issue a regulation imple- menting any listing or critical habitat action in response to an emergency posing a significant risk to [he well-being of a species of fish, wild- life, or plant. 16 U.S.c. $ 1533(b)(7) (1988); 50 C.F.R. S\ 424.20 (1992). An emergency rule may take effect immediately upon publication in the Federal Register; however, rhe FWS/NMFS Continued on page 67 NR&E/SUMMER 1993 If the agenc.y decides to list a species as threatened rather than endangered, the agency must decide which of several protective features will apply to the species. 29