Canada Gazette

The Competency of Operators of Pleasure Craft Regulations, made pursuant to the Canada Shipping Act, came into force in 1999. The Regulations establish competency requirements for operators of pleasure craft, which are vessels used for recreational purposes that are fitted with a motor. The Regulations were designed to reduce the number of boating-related incidents and fatalities by raising overall boating safety awareness and encouraging responsible behaviour and compliance with boating safety regulations.

On December 12, 2003, the Government issued an Order in Council that consolidated all policy related to marine safety under the Minister of Transport. As a result, all legislative and regulatory responsibilities under the Canada Shipping Act, which were administered before that date by the Department of Fisheries and Oceans, were transferred to the Department of Transport. These transfers included regulatory responsibility for the Operator Competency Program.

While the Department now administers the Regulations, the Operator Competency Program continues to be delivered by private sector organizations referred to as course providers. The responsibilities of course providers include preparing submission packages for accreditation, delivering courses and tests to the public that meet the requirements of sections 6 and 7 of the Regulations, issuing Pleasure Craft Operator Cards, and complying with all regulatory and administrative procedures in the delivery of the program.

Since coming into force, weaknesses in the Regulations have been discovered and the Department has received negative feedback and publicity on how the program is being delivered. The business practices of some course providers have been brought into question and this has had a negative impact on the overall credibility of the program. For example, in the case of Internet testing, some course providers do not have secure practices in place to validate the identity of the test candidate or test supervisor. There have been instances where the person who received the Pleasure Craft Operator Card was not actually the person who completed the test. Boaters who have obtained a Pleasure Craft Operator Card without having demonstrated that they have sufficient knowledge of the matters referred to in subsection 6(2) of the Regulations could negatively impact safety on our waterways.

Despite collaborative efforts with course providers to develop guidelines on test administration and supervision procedures, challenges with validation of the candidate and/or supervisor and monitoring of the processes for acquiring and recognizing operator competencies continue to escalate. In addition, since the guidelines are not presently contained within the Regulations, they cannot be adequately enforced.

The current practice of testing during public events continues to be problematic. More and more course providers are conducting testing sessions in this type of environment in an effort to remain competitive. Unfortunately, this is not conducive to the appropriate administration of tests as distractions such as noise are difficult to control, the privacy of the candidate cannot be assured and quite often, other persons have been able to mingle amongst test candidates—all of which takes place in plain view of the public. This has clearly had a negative impact on the credibility of the program.

Testing at private residences, which continues to take place, also presents challenges to the Department. There are three issues associated with this problem: 1) test supervision; 2) verification of the test candidate's identity; and 3) effective monitoring by the Department.

Transport Canada has been made aware of many situations where the test has been completed without supervision, which is in violation of the current subsection 7(3) of the Regulations. Several course providers have used automated systems for issuing proctor codes for accessing online tests. As a result, candidates have been able to register themselves as both a candidate and a proctor (i.e. the person administering the test) by simply inventing a name of a proctor to access the test. The test has become easy for anyone to access provided a person has two separate email accounts.

Due to the use of automated systems and the fact that many course providers are not verifying proctor information, the verification of the identity of test candidates has been called into question. The Department has been made aware of instances where a Pleasure Craft Operator Card has been issued to a person who has not even completed the test, as another individual completed the test for them. These types of situations have been almost impossible to control as they often take place in a private residence.

Monitoring course providers and their agents to ensure compliance with the Regulations is the responsibility of the Department. Accessing private residences for monitoring purposes is a delicate issue, and it cannot be assumed that Transport Canada officials would always be granted access to private residences for test monitoring purposes.

During the course of consultations, the following alternatives were discussed with stakeholders with the goal of solving the problems with the Operator Competency Program:

With no amendments to the Regulations, the current challenges with testing procedures would likely continue. Boaters could easily obtain proof of competency without first having acquired the minimum knowledge to safely operate a boat. This could negatively impact safety on our waterways. In addition, the Department would continue to receive complaints about the value of such a program and the media would continue to question the Department concerning how it administers the program.

In keeping with the Government's commitment to provide an equal opportunity for all Canadians to learn about boating safety and afterwards obtain proof of competency, there is strong support to continue with distance education, including online testing. The Department agrees that Internet testing should continue but believes there is a need to improve the procedures used for administering tests.

Improving the test administration procedures is considered the best alternative, as it would address many of the immediate concerns regarding the Operator Competency Program while at the same time it would allow all modes of testing (including Internet testing) to continue. This alternative received strong support from members of the Canadian Marine Advisory Council (CMAC), the Recreational Boating Advisory Councils (RBAC), enforcement officials, and course providers.

After having examined current issues facing the Operator Competency Program, the Department has decided that minimum performance requirements related to the test administration procedures would be included in the Regulations. These regulatory requirements would permit objective evaluation as to whether the test administration practices of course providers are consistent with the Department's policy of ensuring that sufficient knowledge has been acquired before a person can be issued a Pleasure Craft Operator Card.

After looking at various options in order to improve test administration procedures, the Department is recommending that course providers develop and implement a test protocol that must include the following:

Under paragraph 7(1)(a) of the proposed Regulations, course providers will be required to submit their test protocol for approval by the Minister and will also be responsible for ensuring that each of their agents implement all elements of the approved protocol. The introduction into the Regulations of a test protocol requirement will help ensure consistency in how tests are administered from one course provider to the next.

Under paragraphs 7(2)(a) and (b) of the proposed Regulations, before a test is administered to a candidate, the course providers must have established procedures requiring the person administering the test to ensure that the identity and age of the candidate is verified, that the candidate is aware of the test's duration and pass mark and that he receives clear instructions on how to complete the test.

Under paragraph 7(2)(c) of the proposed Regulations, course providers will be required to establish and implement rules that a candidate must follow during the test that would ensure that the candidate is not permitted to communicate with anyone except the person administering the test, does not have access to documents other then the test and cannot consume alcohol during the test. Also, no candidate will be permitted to copy the test, remove it from the test site or forward it to anyone.

The proposed Regulations will also introduce test site parameters, which are contained in paragraph 7(2)(d). These parameters will substantially lessen the current problems with regards to controlling distractions and maintaining the privacy of candidates during public event testing. Also, the proposed test site parameters will only allow testing to take place in a site that is owned, leased, occupied or otherwise controlled by the course providers and will prohibit testing at a site that is under the control of a candidate taking the test. The course providers will also be required to permit access to any agents of the Department of Transport for monitoring purposes. This would eliminate the most common situations where neither the identities of the candidate and person supervising the test nor the actual presence of a person to supervise the test can be reliably validated. In addition, paragraph 7(2)(g) requires that the number of candidates per person administering a test shall not exceed 20.

Subsection 7(3) of the proposed Regulations will permit the continued administration of tests in paper format, electronically by computer or, in certain cases, orally or by some other form of communication adapted to overcome a candidate's difficulty in the official languages or to accommodate his or her documented health problem. In addition, paragraphs 7(4)(b) and (c) of the Regulations will address tests generated randomly from a bank of questions as well as tests accredited by the Canadian Coast Guard prior to the most recent test accreditation date of July 24, 2003, and consequently, prior to the proposed amendments.

Amendments have been made to the proposed Regulations as recommended by the Standing Joint Committee for the Scrutiny of Regulations (SJC). In response to concerns expressed by the SJC on confusion between sections 3 and 5, subsections 3(1) to (2.1) of the Regulations are being amended to clarify that proof of age on board the craft is only required of an operator born before April 2, 1983, who does not have proof of competency on board a craft that is at least 4 m in length and also to clarify that a boat renter may rent in respect of such an operator. In addition, section 5 is being repealed.

Another concern expressed by the SJC was that the current Regulations do not distinguish between the circumstances that may result in the suspension of the accreditation of a course or test and those that may result in its revocation. To avoid the possibility of an arbitrary difference in the consequences of similar facts, subsection 7.1(1) of the Regulations would only contain circumstances leading to suspension and would not contain any circumstances leading to revocation.

Section 3 of the Regulations is being amended to expressly prohibit any course providers from issuing a Pleasure Craft Operator Card to a candidate unless the testing of that candidate met the requirements of section 7, except where replacing a previously issued card.

The purpose of section 8.3 of the existing Regulations was to make the failure to obey the directions of an enforcement officer punishable as an offence under the Canada Shipping Act. However, a requirement of an enforcement officer is not a provision of the Act or the Regulations. Given that subsection 209(1) of the Canada Shipping Act, 2001, expressly sets out the particular administrative directions the contravention of which will constitute an offence, section 8.3 of the Regulations will become redundant upon the coming into force of the new statute. Therefore, it is proposed that section 8.3 of the Regulations be repealed at this time.

The goal of the Operator Competency Program is to reduce the number of boating-related incidents and fatalities through education and training. Through the introduction of test protocol procedures, the identification of test site parameters, the inclusion of all test formats, and the inclusion of provisions where accreditation can be suspended under certain circumstances, Canadians can expect to see fair and consistent testing practices being implemented across the country.

It is anticipated that the majority of the boating safety community will support the proposed amendments. With testing of candidates no longer permitted in private residences and with more controls proposed for testing during public events, many of the current problems associated with the Operator Competency Program will be eliminated. The credibility of the program will be restored when stakeholders see that the Department is taking steps to have more control over how course providers will deliver the program to the public.

By having procedures in place for ensuring that the identity of the test candidate is verified and that candidates are being properly supervised, there would be greater assurance that the Pleasure Craft Operator Cards are being issued to candidates who do have the minimum knowledge of boating safety matters as required by the Regulations. As a result, the number and severity of boating-related fatalities and injuries, as well as damage to property, is expected to decline. By having more knowledgeable boaters on our waterways, the costs associated with search and rescue and enforcement initiatives should be reduced.

There could be some monetary costs associated with introducing test protocol procedures into the Regulations. As testing will no longer be permitted from a private residence, course providers will be required to find alternate testing locations. This could include the rental of a hall, for example. At this time, we cannot put a dollar value on the increased costs to course providers, as information is not available on the number of people who complete the boating safety test from a private residence. Instead of renting a classroom for testing an individual or a group of individuals, there could be other alternatives for course providers to consider. For example, a public library could be an appropriate test site as long as all test protocol conditions are met. Generally, there is no cost incurred for utilizing an area in the public library as a test site. Course providers could also make arrangements with schools, enforcement agencies, or community associations for the use of a room or facility for little to no cost. If there are costs associated with room rentals, we can expect that these costs would be passed on to the candidate and that the cost of taking a boating safety course or test could therefore increase.

A preliminary scan for environmental impacts has been undertaken in accordance with the criteria of Transport Canada's Strategic Environment Assessment Policy Statement — March 2001. The preliminary scan has led to the conclusion that a detailed analysis is not necessary. Further assessments or studies regarding the environmental effects of this initiative are not likely to yield a different determination.

Consultations with stakeholders on the Operator Competency Program have been ongoing during the last three years. Stakeholders include the boating public, enforcement officials, boating safety associations, marine manufacturers and governments. They have actively participated in discussions on program issues and improvements during CMAC and RBAC meetings (both regionally and nationally). In addition, consultations were held separately with course providers in December 2002.

All stakeholders agree that the current Regulations require strengthening to improve the overall credibility of the program. This is evident through the letters that have been forwarded to the Department and the media that have generated negative attention about the program.

In situations where a test is not administered in accordance with the approved test protocol or the course or test is being administered in a manner where the person's knowledge is doubtful upon completion of the course or test, the Department may suspend the accreditation of an accredited course or test or may suspend the approval of a test protocol. Section 562.14 of the Canada Shipping Act contains the offence and punishment provisions for non-compliance with the Regulations.

The Regulations would come into force 120 days after the day on which they are registered. This would provide course providers with a reasonable amount of time to comply with these new requirements.

André Bégin, AMSP, Manager, Operator Competency Program, Marine Safety, Transport Canada, Place de Ville, Tower C, 11th Floor, 330 Sparks Street, Ottawa, Ontario K1A 0N5, (613) 990-4826 (telephone), (613) 991-4818 (fax).

Notice is hereby given that the Governor in Council proposes, pursuant to subsection 562(3) of the Canada Shipping Act, to make the annexed Regulations Amending the Competency of Operators of Pleasure Craft Regulations.

Interested persons may make representations with respect to the proposed Regulations to the Minister of Transport within 30 days after the date of publication of this notice. All such representations must be in writing and cite the Canada Gazette, Part I, and the date of publication of this notice, and be sent to André Bégin, Manager, Operator Competency Program, Department of Transport, Place de Ville, Tower C, 330 Sparks Street, Ottawa, Ontario K1A 0N5 (tel: (613) 990-4826; fax: (613) 996-8902; e-mail: begina@tc.gc.ca).

1. (1) The definitions "CCG-accredited course" and "CCG-accredited test" in section 1 of the Competency of Operators of Pleasure Craft Regulations (see footnote 1) are repealed.

(2) The definition "Pleasure Craft Operator Card" in section 1 of the Regulations is replaced by the following:

"Pleasure Craft Operator Card" means a card issued by a course provider that attests that the cardholder has received a mark of at least 75 per cent on a test. (carte de conducteur d'embarcation de plaisance)

(3) Section 1 of the Regulations is amended by adding the following in alphabetical order:

"accredited course" means a series of lessons in respect of boating safety that has been accredited by the Department of Transport under section 6. (cours agréé)

"accredited test" means a test referred to in paragraph 7(4)(c). (examen agréé)

"candidate" means a person presenting themselves at a test site to take the test or a person taking the test for a Pleasure Craft Operator Card. (candidat)

"course provider" means a person who has obtained the accreditation of a boating safety course in accordance with section 6. (prestataire de cours)

"test" means a boating safety test that meets the requirements of section 7 taken for the purpose of obtaining a Pleasure Craft Operator Card. (examen)

(2) Subsections 3(2) and (2.1) of the Regulations are replaced by the following:

(a) is operating the pleasure craft under the supervision of an instructor, as part of an accredited course;

(b) is not a resident of Canada and whose pleasure craft is in Canada for less than 45 consecutive days; or

(c) was born before April 2, 1983, has proof of age on board and operates a pleasure craft of at least 4 m in length before September 15, 2009.

(2.1) No owner, master, operator, charterer, hirer, person in charge of a pleasure craft or person who makes a pleasure craft available for rent shall allow a person to operate the pleasure craft unless that person is a person referred to in subsection (1) or (2).

(3) Section 3 of the Regulations is amended by adding the following after subsection (3):

(4) No course provider shall issue a Pleasure Craft Operator Card to a candidate unless the provider or their agent has administered a test meeting the requirements of section 7 to the candidate, except where replacing a previously issued card.

(a) if the person has received a mark of at least 75 per cent on a test and has been issued a Pleasure Craft Operator Card;

5. The heading before section 6 of the Regulations is replaced by the following:

6. Section 6 of the Regulations is amended by replacing the expressions "CCG-accredited course" and "Canadian Coast Guard" with the expressions "accredited course" and "Department of Transport", respectively, with such modifications as the circumstances require.

7. The heading before section 7 and sections 7 and 7.1 of the Regulations are replaced by the following:

7. (1) Subject to section 7.1, a course provider or their agent may administer a test only if the test

(a) is administered in accordance with the course provider's test protocol submitted to and approved by the Minister; and

(2) The Minister shall approve a test protocol if in the Minister's opinion it contains procedures ensuring that

(i) the maximum duration of the test,

(ii) the passing grade, and

(iii) the procedures to be followed to complete the test;

(i) communicates with any person other than the person administering the test,

(ii) has access to documentation other than the test and the instructions that relate to it,

(iii) copies, removes from the test site or sends to anyone, the test or any portion of it, or

(iv) consumes alcoholic beverages;

(i) that is designated solely for the use of the person administering the test, candidates and, if applicable, agents of the Department of Transport, for the duration of the test,

(ii) that is owned, leased, occupied or otherwise controlled by the course provider but that is in no way under the control of a candidate taking the test,

(iii) in respect of which the course provider has undertaken in advance to permit access to any agents of the Department of Transport,

(iv) that conforms to the description furnished by the course provider in their test protocol, and

(v) that, in the case of a test site situated within a space where a commercial or sporting activity occurs concurrently with the test, is delineated by walls or partitions in such a manner that the candidates are incapable of seeing anything outside the test site during the taking of the test except through a window;

(f) any candidate who does not comply with the requirements of paragraph (c) is removed from the test site and their answers automatically rejected for that test;

(g) the ratio of candidates to persons administering the test shall not exceed 20 to 1; and

(h) a copy of the test protocol shall be available at the test site for consultation, including an inspection by an agent of the Department of Transport.

(3) All tests shall be supervised throughout their duration by the person administering the test and can be provided to a candidate only at a test site and in one of the following formats:

(i) in the case of a candidate who does not fluently read English or French or is deaf or mute, by the person administering the test asking the questions orally, if necessary, through a competent and independent interpreter, and

(ii) in any other specific case, by any other method of communication that meets the needs generated by a candidate's documented health problem.

(a) every test shall be composed of 36 items or questions distributed as follows:

(i) 9 items or questions on the matters referred to in paragraph 6(2)(a) and the provisions referred to in paragraph 6(2)(e) that are applicable to those matters,

(ii) 9 items or questions on the matters referred to in paragraph 6(2)(b) and the provisions referred to in paragraph 6(2)(e) that are applicable to those matters,

(iii) 12 items or questions on the matters referred to in paragraph 6(2)(c) and the provisions referred to in paragraph 6(2)(e) that are applicable to those matters, and

(iv) 6 items or questions on the matters referred to in paragraph 6(2)(d);

(b) in the case of a test other than one referred to in paragraph (c) and in the case of all tests administered by computer, the items or questions shall be randomly selected from the most recent bank of questions provided by the Department of Transport to course providers who have had their test protocols approved under subsection (2); and

(c) in the case of a test accredited before July 24, 2003 and administered by the person who obtained the accreditation or their agent, the test shall not have been altered since that accreditation.

7.1 (1) If a course provider issues a Pleasure Craft Operator Card without having complied with subsection 3(4), if a test is not administered in accordance with the test protocol approved under subsection 7(2) and applicable to it or it is demonstrated that a course is being given or a test is being administered to a candidate in such a manner that, on completion of the course or the test, the person's knowledge of the matters referred to in subsection 6(2) is doubtful, the Department of Transport may do any or all of the following:

(2) The Department of Transport shall reinstate an accreditation or approval suspended under subsection (1) if the situation that justified the suspension has been remedied.

(3) No person shall administer a course whose accreditation has been suspended or a test whose accreditation or whose test protocol approval has been suspended, except where an accreditation or approval has been reinstated.

9. These Regulations come into force 120 days after the day on which they are registered.