00-22436. National Capital Region Parks; Photo Radar Speed Enforcement

AGENCY:

National Park Service, Interior.

ACTION:

Proposed rule.

SUMMARY:

This proposed rule establishes the use and procedure for photo radar speed enforcement in the park areas administered by the National Capital Region of the National Park Service (NPS). The proposed rule provides for the issuance of a citation to the registered owner of the speeding vehicle identified by photo radar but allows the owner, if he or she was not driving the vehicle when the offense occurred, to mail in a statement of denial whereupon the citation will be dismissed. If the citation is adjudicated, the proposed rule allows for the admission of the photo radar photograph under certain conditions, and creates a rebuttable presumption that the cited registered owner was the driver of the vehicle at the time of the violation.

DATES:

Written comments must be received on or before October 31, 2000. The NPS may not consider comments received after this date in preparing the final regulation.

ADDRESSES:

Written comments may be sent to: Audrey Calhoun, Superintendent, George Washington Memorial Parkway, Turkey Run Park, McLean, Virginia 22101.

FOR FURTHER INFORMATION CONTACT:

Audrey Calhoun, Superintendent, George Washington Memorial Parkway, Turkey Run Park, McLean, Virginia 22101, telephone: [phone]; Randolph J. Myers, Attorney, Branch of National Parks, Office of the Solicitor, Department of the Interior, 1849 C Street, N.W., Washington, D.C., 20240, telephone: [phone].

SUPPLEMENTARY INFORMATION:

1. Background

The NPS has major responsibilities and program involvement in traffic safety and traffic law enforcement on its park roads. The National Capital Region of the NPS administers some 447 miles of parkways, primary and secondary roads through Federal parkland in the Washington metropolitan area. It has four major parkways that form a scenic entranceway into Washington, D.C. These major parkways are the George Washington Memorial Parkway, the Rock Creek and Potomac Parkway, the Suitland Parkway, and the Baltimore-Washington Parkway.

The George Washington Memorial Parkway (the “Parkway”) contains one of the most heavily traveled NPS roadways in the United States. The Parkway comprises 7,146 acres along the western bank of the Potomac River. The Parkway extends from Mount Vernon, Virginia, at its southern end to the Great Falls of the Potomac at its northern end. A major feature of the Parkway is a roadway that winds from Mount Vernon, 38.3 miles northwest to the Capital Beltway.

The initial section of the Parkway, originally known as the Mount Vernon Memorial Highway, opened in 1932 and stretches from Mount Vernon to the Memorial Bridge. Over the course of the next several decades, the Parkway was extended to its present length. Since its inception, a major purpose of the Parkway has been to honor the first President by connecting the sites that marked his life. The Parkway was also intended to preserve the natural setting along the Potomac River and to provide a fitting entryway into the nation's Capital. The design of the Parkway follows these intentions.

The Parkway is not designed as a freeway, and is not intended solely to provide a direct and efficient route between two points. Rather, the Parkway is designed as a parkway in the traditional sense—taking into account scenery, topography, and other natural features—and providing a means for pleasurable driving between and among park areas. As such, the Parkway encompasses and affords views of some of the Capital area's most significant historical, ecological, and recreational sites. Traveling from Mount Vernon at its southern end, the Parkway includes such diverse resources as Dyke Marsh, the Navy and Marine Memorial, and the Lyndon Baines Johnson Grove. Passing the Memorial Bridge brings views of Robert E. Lee's Home to the west and the Lincoln and Washington Memorials to the east. Following the Potomac River past Theodore Roosevelt Island, the Parkway continues to Fort Marcy just prior to its terminus at the Capital Beltway. Throughout its entire length, the Parkway offers picnic areas, biking and walking trails, and sweeping views of the Potomac River.

Since official records have been kept, the vehicle counts on the Parkway have increased significantly every year. In 1996 alone, the average daily vehicle traffic volume on the Parkway ranged from 43,446 vehicles at the Route 123 ramp to 81,828 vehicles at Reagan National Airport. This large amount of traffic, much of which includes commuter traffic, is mirrored by a significant number of crashes on the Parkway.

For example, in 1996, there were 754 crashes on the Parkway; resulting in 138 injuries and four fatalities. In 1997, there were 653 crashes on the Parkway; resulting in 112 injuries and seven fatalities. In 1998, there were 553 crashes on the Parkway; resulting in 95 injuries and one fatality. In 1999, there were 464 crashes on the Parkway; resulting in 100 injuries and one fatality. The number of accidents that resulted in property damage during these years was 534 in 1997, 457 in 1998, and 363 in 1999. Between January 1996, and June 2000, a total of 13 deaths has occurred in motor vehicle crashes on the Parkway.

Further, even though the United States Park Police's speed enforcement resulted in 11,441 citations for speeding in 1997, 9,107 in 1998 and 7,996 in 1999, traditional enforcement efforts have only been marginally successful. This may be the result, at least in part, of inherent limitations on traditional enforcement techniques due to Parkway configuration, which is designed with scenic beauty as a primary criterion, and therefore lacks wide shoulders and frequent turnarounds that are more conducive to traditional police enforcement. In any event, in spite of the conspicuous posting of speed limit signs, the issuance of speeding citations by Park Police officers, the installation of radar message boards that instantly alert drivers of their speed, and the addition of median barriers in 1997 at a cost of $1.4 million, speeding remains a safety problem with speed related crashes and aggressive driving incidents still occurring.

Motor vehicle crashes at each of the other NPS Capital Gateways are also alarming. On the Baltimore/Washington Parkway in 1996, there were 756 motor vehicle crashes resulting in 151 injuries and two fatalities. In 1997, there were 769 motor vehicle crashes resulting in 144 injuries and five fatalities. In 1998, there were 511 crashes with 124 injuries and seven fatalities. And in 1999, there were 525 crashes with 131 injuries and eight fatalities. On Rock Creek Parkway in 1996, there were 249 motor vehicle crashes with 56 injuries and one fatality. In 1997, there were 206 crashes with 164 injuries and one fatality. In 1998, there were 188 crashes with 40 injuries. And in 1999, there were 207 with 48 injuries and two fatalities. On the Clara Barton Parkway in 1996, there were 84 motor vehicle crashes with 16 injuries and one fatality. In 1997, there were 50 crashes with 41 injuries and one fatality. In 1998, there were 49 crashes resulting in 10 injuries. And in 1999 there were 40 crashes with nine injuries and one fatality. Finally, on the Suitland Parkway in 1996, there were 124 crashes with 26 injuries and one fatality. In 1997, there were 114 crashes with 24 injuries and two fatalities. In 1998, there were 96 crashes with 22 injuries. And in 1999, there were 114 crashes with 28 injuries.

The National Research Council's Transportation Research Board, (Board) has found that excessive speed was involved in 12 percent of all police reported crashes. The Board has also determined that achieving better compliance with speed limits has been difficult, that education and the increased efforts of personnel alone have not been enough, and that photo radar has proven to be a reliable tool to reduce speeding. Robert R. Blackman and Daniel T. Gilbert, Transportation Research Board Photographic Enforcement of Traffic Laws 3 (1995). The Board's experience is similar to the findings of the NPS, which has found that speeding was a contributing factor in 10 percent of the crashes that occurred in 1994-1996.

The NPS believes that speeding and aggressive driving are serious problems and that a reliable supplemental speed enforcement tool is necessary. As such, the NPS's George Washington Memorial Parkway has been working with the National Highway Traffic Safety Administration by conducting an automated speed enforcement demonstration project on the Parkway. During the early stage of the demonstration project, the equipment was tested and data were collected to determine the speed distribution on the Parkway. The data collected confirms a high frequency of flagrant speeding violations. As such, the NPS believes that it is now appropriate to propose a photo radar regulation, which would ultimately allow the use of photo radar in speed enforcement.

The NPS seeks the views of the public on this proposed rule and will consider all timely comments. If a final photo radar regulation is promulgated, it is the NPS's intention not to immediately begin issuing citations for speed violations identified by unmanned photo radar devices. Rather, the NPS plans to first educate drivers of the need to obey the speed limit. As such, it would be the NPS's intention to first issue warning letters for a reasonable time period, probably for one month, before citations begin to be issued.

Automated photo enforcement cameras for traffic enforcement are already used in the Washington metropolitan area. Specifically, the technology has already been deployed in Fairfax County and the City of Alexandria, Virginia, in Montgomery and Howard Counties, Maryland, and in the District of Columbia. Further, photo radar enforcement works. The City of Portland, Oregon found that their use of photo radar caused a 27 percent decrease in the percentage of vehicles traveling more than 10 miles per hour over the posted speed, compared to a 12 percent increase on control streets without photo radar. The Urban Transportation Monitor reports that where legislatively enacted photo radar has been installed, there has been a significant reduction in violations. The City of Paradise Valley, Arizona, reported an accident rate decrease of 46 percent in the first year of operation of its photo radar system.

Photo radar devices simply combine a camera with radar technology. The device projects a radar beam across a roadway. When a vehicle passes through the beam exceeding a preprogrammed speed, the camera is triggered and a photograph or digital image is created of the vehicle and its license plate. The photograph also depicts the vehicle's speed, date, time, and location of the violation. The photograph later can be compared to vehicle registration records, and a citation can be issued. The device can be also programmed to photograph cars only if they are exceeding a certain speed, and this threshold speed can be changed.

Although most photo radar devices use this same basic technology, the devices can be deployed in the field in a variety of ways. For example, the device may be mounted in a law enforcement vehicle or it may be encased in a metal box and mounted on a pole adjacent to a roadway. However it is deployed, photo radar allows law enforcement agencies to target flagrant speeders in a safe, reliable and a nondiscriminatory manner. Indeed, because there are some locations where it is difficult for drivers and officers to pull over safely, use of photo radar can be safer for drivers and officers alike. Further, the NPS believes that a photo radar system is less intrusive and burdensome, insofar as the driver does not have to be stopped.

NPS regulations already allow the use of radiomicrowaves or other electrical devices to determine the speed of a vehicle on a park road. The NPS and its United States Park Police believe that the use of photo radar, with or without the presence of an observing officer, can be a safe, impartial and a reliable supplemental tool to decrease speeding and aggressive driving. And under the NPS's proposed regulation, where photo radar identifies a vehicle exceeding a preprogrammed speed, a citation is be issued to a registered owner of the speeding vehicle.

If the cited registered owner was the driver, he or she can mail in the designated fine. If the cited registered owner was not driving the vehicle when the offense occurred, the owner may mail in a statement of denial whereupon the citation will be dismissed. Finally, if the citation is to be adjudicated, the proposed regulation allows for the admission of the photo radar photograph under certain conditions, and creates a presumption that the cited registered owner was the driver of the vehicle at the time of the violation, but also allows the registered owner several means to rebut the presumption.

By using photo radar as a supplemental speed enforcement tool, the NPS hopes to decrease speeding and aggressive driving, and to reduce fatalities, personal injuries and property damage. The NPS also hopes that by getting drivers to comply with posted speed limits, it also will help preserve the historical, ecological, and recreational attributes of Federal parkland. Indeed, depending on our experiences on the Parkway, photo radar may be used on the other parkways and park roads administered by the National Capital Region. However, it would still be the NPS's plan not to immediately begin issuing citations on such other park roads for violations identified by unmanned photo radar devices. Rather, the NPS still would intend to first issue warning letters, for a reasonable time period, before citations begin to be issued.

2. Description of the Proposed Rule

The proposed rule outlines the use and procedure for photo radar in park areas administered by the National Capital Region. The proposed rule does not require the use of any specific type of photo radar equipment, but rather leaves that decision to the discretion of the NPS. The proposed rule does provide for the issuance of a citation to the registered owner of the speeding vehicle but allows the owner, if he or she was not driving the vehicle when the offense occurred, to mail in a statement of denial whereupon the citation will be dismissed. The citation for a violation identified by photo radar would probably be for failure to comply with the directions of a traffic control device or for speeding. If the citation is to be adjudicated, the proposed rule allows for the admission of the photo radar photograph(s) under certain conditions, and creates a presumption that the registered owner was the driver of the vehicle at the time of the violation, but also allows the registered owner several means to rebut the presumption.

The preprogrammed speed which triggers the photo radar device to take a photograph will be selected by the NPS's United States Park Police. This may be done in several ways. The device may be programmed to photograph every vehicle exceeding a certain speed or the device may be programmed to photograph the top, for example, three percent of speeding vehicles. The Park Police may vary this threshold speed at its discretion but intends to keep this threshold confidential to avoid attempts to circumvent the speed limit laws. The Park Police also intends to monitor average speeds regularly and to adjust the threshold accordingly.

Once a speeding vehicle and its license plate are photographed by the photo radar device, the proposed rule allows a citation to be issued to a registered owner of the vehicle within 15 business days. Consistent with other photo radar enactments, this time period provides timely notice of the violation, and allows the registered owner an ample opportunity to gather witnesses and prepare a defense. A letter or other explanation accompanies the citation and explains that the recipient may (1) pay the fine; (2) submit a certificate of innocence or affidavit; or (3) appear in court for adjudication.

A person issued a citation then has thirty days from the date the citation was mailed to respond by mail. If the cited registered owner fails to timely respond by mail, the cited registered owner appears in court at the time and place designated in the citation. In the adjudication, the photo radar photograph(s) is accepted as prima facie evidence, provided that the police officer or other authorized person testifies as to the camera's placement and that it was properly working under applicable operation and calibration specifications at the time of the violation. Further, proof that the vehicle was operated contrary to law, together with proof that the cited registered owner owned the vehicle at the time of the violation, constitutes a rebuttable presumption that the cited registered owner was the person who committed the violation. However, this presumption will be rebutted if the cited registered owner either submits a certificate or an affidavit, or if the registered owner testifies under oath that he or she was not the operator of the vehicle at the time of the violation.

The NPS's proposed rule's rebuttable presumption is similar to other rebuttable presumptions that have been upheld by the courts, because there was a “rational connection” between the basic facts proved and the ultimate fact presumed and the latter are “more likely than not to flow from” the former. Ulster County Court v. Allen, 442 U.S. 140 (1979). In that regard, the proposed rule's rebuttable presumption that the cited registered owner was the driver of the speeding vehicle is both logical and rational. Further, this rebuttable presumption is entirely consistent with many State laws that have similar rebuttable presumption provisions for photo stop light enforcement and photo radar speed enforcement.

Nevertheless, the NPS's proposed rebuttable presumption provision can be rebutted in one of two ways. First, a registered owner who receives a citation in the mail is given a mechanism for rebutting the presumption by mail. If the cited registered owner was not driving the vehicle at the time of the offense, he or she may rebut the presumption by mailing an enclosed certificate of innocence or an affidavit stating that he or she was not the driver of the vehicle at the time of the alleged violation. The certificate of innocence or affidavit must be signed and be accompanied by a copy of the front and back of the recipient's driver's license. If the certificate or affidavit is received within thirty days of the date the citation was mailed, the citation will be dismissed. Second, in the event of adjudication, the proposed rule provides that the rebuttable presumption shall be rebutted if the cited registered owner either submits a certificate or an affidavit, or if the registered owner testifies under oath that he or she was not the operator of the vehicle at the time of the violation.

In conclusion, the NPS believes that the proposed photo radar rule will provide a reliable, impartial, supplemental speed enforcement tool that will help decrease speeding and aggressive driving and help reduce fatalities, personal injuries and property damage. The NPS hopes that, by using photo radar, more drivers will comply with the posted speed limits.

Our practice is to make comments, including names and home addresses of respondents, available for public review during regular business hours. Individual respondents may request that we withhold their home address from the rule making record, which we will honor to the extent allowed by law. There also may be circumstances in which we would withhold from the rule making record a respondent's identity, as allowed by law. If you wish us to withhold your name and/or address, you must state this prominently at the beginning of your comment. We will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public inspection in their entirety.

Drafting Information

The following people participated in the drafting of this proposed rule: Randolph J. Myers, Office of the Solicitor, Department of the Interior; Audrey Calhoun and Dottie Marshal, George Washington Memorial Parkway; Major Hugh Irwin, United States Park Police.

Compliance With Other Laws

Regulatory Planning and Review (E.O. 12866)

This proposed rule is not a significant regulation and is not subject to review by the Office of Management and Budget under Executive Order 12866.

(1) This proposed rule will not have an effect of $100 million or more on the economy. This proposed rule simply creates a supplemental speed enforcement tool allowing the United States Park Police to help regulate speeding on Federal parkland. As such, it will not adversely affect in a material way the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or Tribal governments or communities.

(2) This proposed rule will not create a serious inconsistency or interfere with an action taken or planned by another agency.

(3) This proposed rule does not alter the budgetary effects or entitlements, grants, user fees, or loan programs or the rights or obligations of their recipients.

(4) As detailed in the Supplementary Information section, this proposed rule is consistent with well-established constitutional and statutory principles and does not raise novel legal or policy issues.

Regulatory Flexibility Act

The Department of the Interior certifies that this proposed rule will not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). This proposed rule merely creates another enforcement tool allowing the United States Park Police to regulate speeding on Federal parkland.

Small Business Regulatory Enforcement Fairness Act

This proposed rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. Because this proposed rule only creates another enforcement tool to regulate speeding on Federal parkland, it:

a. Does not have an annual effect on the economy of $100 million or more.

b. Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, local government agencies or geographic regions.

c. Does not have significant adverse effects on competition, employment, investment, productivity, innovation or the ability of U.S.-based enterprises to compete with foreign-based enterprises.

Unfunded Mandates Reform Act

This proposed rule does not impose an unfunded mandate on State, local, or tribal governments or the private sector of more than $100 million per year. This proposed rule does not have a significant or unique effect on State, local or tribal governments or the private sector because it only creates another enforcement tool to regulate speeding on Federal parkland. A statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq.) is not required.

Takings (E.O. 12630)

In accordance with Executive Order 12630, this proposed rule does not have significant takings implications. A takings implication assessment is not required.

Federalism (E.O. 13132)

The Department of the Interior has determined this proposed rule conforms to the Federalism principals of Executive Order 13132. It also certifies that no regulatory preemption occurs. This proposed rule simply creates a supplemental enforcement tool to help regulate speeding on Federal parkland and is restricted to the minimum level necessary to achieve the objectives of 5 U.S.C. 301 under which this rule is promulgated.

Civil Justice Reform (E.O. 12988)

In accordance with Executive Order 12988, the Office of the Solicitor has determined that this proposed rule does not unduly burden the judicial system and does meet the requirements of section 3(a) and 3(b)(2) of the Order.

Paperwork Reduction Act

This proposed rule contains no new reporting or record keeping requirements which require approval by the Office of Management and Budget under 44 U.S.C. 3510 et seq.

National Environmental Policy Act (NEPA)

This proposed rule is of an administrative, legal and procedural nature and therefore is categorically excluded from NEPA. 516 DM 2 Appendix 1.10. This proposed rule also does not constitute a major Federal action significantly affecting the quality of the human environment under NEPA, 42 U.S.C. 4321 et seq. A detailed statement under the NEPA is not required.

Clarity of This Regulation

Executive Order 12866 requires each agency to write regulations that are easy to understand. We invite your comments on whether this rule is easy to understand, including answers to questions such as the following: (1) Are the requirements in this rule clearly stated? (2) Does the rule contain technical language or jargon that interferes with its clarity? (3) Does the format of this rule (grouping and order of sections, use of headings, paragraphing, etc.) aid or reduce its clarity? (4) Would this rule be easier to understand if it were divided into more (but shorter) sections? (5) Is the description of this rule in the SUPPLEMENTARY INFORMATION section of the preamble helpful in understanding this rule? What else could we do to make this rule easier to understand?

Send a copy of any comments that concern how we could make this rule easier to understand to: Office of Regulatory Affairs, Department of the Interior, Room 7229, 1849 C Street NW, Washington, D.C. 20240. You may also e-mail the comments through the Internet addressed to: [e-mail].

List of Subjects in 36 CFR Part 7

• National parks
• National Capital Region parks

In consideration of the foregoing, it is proposed to amend 36 CFR part 7 as follows:

PART 7—SPECIAL REGULATIONS, AREAS OF THE NATIONAL PARK SYSTEM

1. The authority citation for Part 7 continues to read as follows:

Authority: 16 U.S.C. 1, 3, 9a, 460(9), 462(k); Sec. 7.96 also issued under D.C. Code 8-137 (1981) and D.C. Code 40-721 (1981).

2. Section 7.96 is amended by adding paragraph (n) which reads as follows:

§ 7.96

National Capital Region.

* * * * *

(n) Regulation of speeding by photo radar. (1) What is photo radar? Photo radar means a device used for speed limit enforcement, utilizing a radiomicrowave or low doppler radar unit and camera that automatically produces a photograph of a vehicle traveling in excess of the legal speed limit, and listing the vehicle's speed, date, time, and location of the violation printed on the photograph.

(2) How will a photo radar citation for speeding occur? (i) A citation for speeding will be issued to the vehicle's registered owner and sent by registered mail to the owner's address, as listed by the appropriate department of motor vehicles, within 15 business days of the violation. The citation will include an explanation describing photo radar, options available to the registered owner, and a blank certificate of innocence.

(ii) If the registered owner was not the driver of the vehicle at the time of the alleged violation, he or she may respond by executing the certificate or submitting an affidavit stating that fact. The certificate or affidavit must be signed by the registered owner, include a copy of the front and back of the registered owner's driver's license, and be mailed back to the office which issued the citation within 30 days from the date the citation was mailed. If the cited registered owner submits a timely certificate or affidavit, the citation will be dismissed.

(iii) A cited registered owner who does not timely respond must appear in court at the time and place designated in the citation.

(3) How will a photo radar prosecution for speeding occur? (i) In a prosecution, photo radar photograph(s) will be accepted as prima facie evidence in any court, provided that the police officer or other authorized person testifies as to the camera's placement and that it was properly working under applicable operation and calibration specifications at the time of the violation.

(ii) Proof that the vehicle was operated contrary to law, together with proof that the citation recipient was the registered owner of the vehicle at the time of the violation, will constitute a rebuttable presumption that the cited registered owner was the person who committed the violation.

(iii) This rebuttable presumption will be rebutted if the cited registered owner submits either a certificate, affidavit, or testifies under oath that he or she was not the operator of the vehicle at the time of the violation.

* * * * *

Dated: August 2, 2000.

T. Destry Jarvis,

Acting Assistant Secretary, Fish and Wildlife and Parks.