28 CFR Part 35 Title II Notice of Proposed Rulemaking (NPRM) - Preamble (published 2008)

"Direct Threat" (Section-by-Section Analysis)

In the Department's proposed § 35.136(b)(3), a service animal may be removed from the premises of a public entity if the animal poses a direct threat to the health or safety of others that cannot be eliminated by reasonable modifications.  Direct threat is not defined in title II, but it is defined in § 36.208(b) of the current title III regulation as "a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices, or procedures, or by the provision of auxiliary aids or services."  The Department proposes taking the definition from its current location in title III and placing it in the definitions section in both title II (§ 35.104) and title III (§ 36.104).