(B) in each of clause (i), (ii), and (iii), by 
inserting ‘‘any such species should’’ before 
‘‘be’’; and 
(2) by striking the last sentence and inserting 
the following: 
‘‘(3) Each determination under paragraph (2)(B) 
shall consider one of the following: 
‘‘(A) Except as provided in subparagraph (B) 
of this paragraph, the criteria in the recovery plan 
for the species required by section 5(c)(1)(A) or (B). 
‘‘(B) If the recovery plan is issued before the 
criteria required under section 5(c)(1)(A) and (B) 
are established or if no recovery plan exists for the 
species, the factors for determination that a species 
is an endangered species or a threatened species set 
forth in subsections (a)(1)(A) and (b)(1). 
‘‘(C) A finding of fundamental error in the de-
termination that the species is an endangered spe-
cies, a threatened species, or extinct. 
‘‘(D) A determination that the species is no 
longer an endangered species or threatened species 
or in danger of extinction, based on an analysis of 
the factors that are the basis for listing under sec-
tion 4(a)(1).’’.
SEC. 8. PROTECTIVE REGULATIONS. 
Section 4(d) (16 U.S.C. 1533(d)) is amended by 
striking so much as precedes ‘‘respect’’ and inserting the 
following: 
‘‘(d) PROTECTIVE REGULATIONS.—(1) Whenever any 
species is determined to be a threatened species pursuant 
to subsection (a)(1), the Secretary may, by regulation pub-
lished on or after the date of publication of the rule imple-
menting the determination, prohibit with respect to the 
threatened species any act prohibited under section 
9(a)(1) in the case of fish or wildlife, or section 9(a)(2) 
in the case of plants, with respect to endangered species. 
‘‘(2) Each regulation published under this subsection 
shall be accompanied with a statement by the Secretary 
of the reason or reasons for applying any particular prohi-
bition to the threatened species. 
‘‘(3) A regulation issued under this subsection may 
apply to more than one threatened species only if the spe-
cific threats to, and specific biological conditions and 
needs of, the species are identical, or sufficiently similar, 
to warrant the application of identical prohibitions. 
‘‘(4) With’’. 
SEC. 9. SECRETARIAL GUIDELINES; STATE COMMENTS. 
Section 4 (16 U.S.C. 1533) is amended—
(1) by striking subsections (f) and (g) and re-
designating subsections (h) and (i) as subsections (f) 
and (g), respectively; 
(2) in subsection (f), as redesignated by para-
graph (1) of this subsection— 
(A) in the heading by striking ‘‘AGENCY’’ 
and inserting ‘‘SECRETARIAL’’; 
(B) in the matter preceding paragraph (1), 
by striking ‘‘the purposes of this section are 
achieved’’ and inserting ‘‘this section is imple-
mented’’; 
(C) by redesignating paragraph (4) as 
paragraph (5); 
(D) by inserting after paragraph (3) the 
following: 
‘‘(4) the criteria for determining best available 
scientific data pursuant to section 3(2); and’’; and 
(E) in paragraph (5), as redesignated by 
subparagraph (C) of this paragraph, by striking 
‘‘subsection (f) of this section’’ and inserting 
‘‘section 5’’; 
(3) in subsection (g), as redesignated by para-
graph (1) of this section— 
(A) by inserting ‘‘STATE COMMENTS.—’’ 
before the first sentence;