28 CFR Part 36 Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities NPRM: Preamble (2008 Title III NPRM Preamble)

"Minimal protection." (Section-by-Section Analysis)

There were many comments by service dog users urging the Department to remove from the definition "providing minimal protection."  The commenters set forth the following reasons:  (1) The current phrase can be interpreted to allow "protection dogs" that are trained to be aggressive and to provide protection to be covered under the ADA, so long as they are paired with a person with a disability; and (2) since some view the minimal protection language to mean that a dog's very presence can act as a crime deterrent, the language allows any untrained pet dog to provide this minimal protection by its mere presence.  These interpretations were not contemplated by the ADA or the title III regulation.

In the Department's ADA Business Brief on Service Animals, which was published in 2002, the Department interpreted the minimal protection language within the context of a seizure (i.e., alerting and protecting a person who is having a seizure).  Despite the Department's best efforts, the minimal protection language appears to have been misinterpreted.  Nonetheless, the Department continues to believe that it should retain the "providing minimal protection" language and interpret the language to exclude so-called "attack dogs" that pose a direct threat to others.

Question 9:  Should the Department clarify the phrase "providing minimal protection" in the definition or remove it?