Canada Gazette

Regulations Amending the Competency of Operators of Pleasure Craft Regulations

Her excellency the Governor in Council, on the recommendation of the Minister of Transport, Infrastructure and Communities, pursuant to subsection 562(3) of the Canada Shipping Act, to make the annexed Regulations Amending the Competency of Operators of Pleasure Craft Regulations.

REGULATIONS AMENDING THE COMPETENCY OF OPERATORS OF PLEASURE CRAFT REGULATIONS

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"CCG-accredited test" in section 1 of the Competency of Operators of Pleasure Craft Regulations (see footnote 1) are repealed.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. (1) The portion of subsection 3(1) of the Regulations before paragraph (a) is replaced by the following:

3. (1) Subject to subsection (2), no person shall operate a pleasure craft unless the person

(3) 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; or

(d) has proof on board that they hold a MED-A4 certificate or any certificate referred to in paragraphs 2(a) to (s), (z.18) or (z.43) of the Marine Certification Regulations.

(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).

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

(4) Except where replacing a previously issued card or issuing a card to a person providing proof that they hold a MED-A4 certificate or any certificate referred to in paragraphs 2(a) to (s), (z.18) or (z.43) of the Marine Certification Regulations, 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.

(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 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 on the day on which they are registered.

The Competency of Operators of Pleasure Craft Regulations (the Regulations), made pursuant to the Canada Shipping Act (CSA), establish competency requirements for operators of pleasure craft fitted with a motor and used for recreational purposes.

The Regulations, which were introduced by the Department of Fisheries and Oceans in 1999 and for which responsibility was transferred to Transport Canada (TC) in 2004, are designed to reduce the number of boating-related incidents and fatalities through education and training.

Although TC 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 of courses and tests, 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 TC has received negative feedback and publicity on how the program is being delivered. 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 their 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 supervisor and monitoring of the processes for acquiring and recognizing operator competencies continue to escalate.

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 had a negative impact on the credibility of the program.

Testing at residences 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.

TC has been made aware of many situations where the test has been completed without supervision. Several course providers have used automated systems for issuing proctor codes for accessing online tests. As a result, candidates had been able to register themselves as both a candidate and 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 had been called into question. TC has been made aware of instances where a Pleasure Craft Operator Card had been issued to a person who had not even completed the test as another individual completed the test for them. These types of situations were almost impossible to control as often they took place in a residence.

Monitoring course providers and their agents to ensure compliance with the Regulations is the responsibility of the Department. Accessing residences for monitoring purposes is a delicate issue, and it cannot be assumed that TC officials would always be granted access to 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, 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 TC 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. TC agrees that Internet testing should continue but is of the opinion that there is a need to improve the procedures used for administering tests.

Improving the test administration procedures was considered the best alternative, as it addresses many of the immediate concerns regarding the Operator Competency Program while at the same time, allows 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, TC decided that minimum performance requirements related to the test administration procedures should be included in the Regulations. These regulatory requirements permit objective evaluation as to whether the test administration practices of course providers are consistent with TC'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, TC decided that course providers should develop and implement a test protocol that includes the following:

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

Under paragraphs 7(2)(a) and (b) of the Regulations, before a test is administered to a candidate, the course provider 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 they receive clear instructions on how to complete the test.

Under paragraph 7(2)(c) of the Regulations, course providers are required to establish and implement rules that a candidate must follow during the test that will ensure that the candidate does not communicate with anyone except the person administering the test, does not have access to documents other than the test and does not consume alcohol during the test. Also, candidates must be informed that they are not permitted to copy the test, remove it from the test site or forward it to anyone and the person administering the test must enforce those prohibitions.

The amendments to the Regulations also introduce test site parameters, which are contained in paragraph 7(2)(d). These parameters will substantially lessen the current problems with regard to controlling distractions and maintaining the privacy of candidates during public event testing. Also, the test site parameters only allow testing to take place in a site that is owned, leased, occupied or otherwise controlled by the course providers and prohibits testing at a site that is under the control of a candidate taking the test such as a candidate's residence. The course providers are also required to permit access to any agents of TC for monitoring purposes. This will 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 Regulations permits 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 addresses tests generated randomly from a bank of questions provided by TC 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 these amendments.

Amendments have also been made to the Regulations as recommended by the Standing Joint Committee for the Scrutiny of Regulations (SJC). In response to concerns expressed by the SJC on the possibility of confusion between sections 3 and 5, subsections 3(1) to (2.1) of the Regulations have been 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 meters in length and to also clarify that a boat renter may rent in respect of such an operator if they have proof of age. In addition, section 5 has been repealed.

Another concern expressed by the SJC was that the previous Regulations did 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 is now limited to circumstances leading to suspension and does not deal with revocation.

Section 3 of the Regulations has been amended to expressly prohibit any course providers from issuing a Pleasure Craft Operator Card to a candidate unless the candidate successfully completes a test that meets the requirements of section 7, except where replacing a previously issued card or issuing a card to a person providing proof that they hold a MED-A4 certificate or any certificate referred to in paragraphs 2(a) to (s), (z.18) or (z.43) of the Marine Certification Regulations.

Prior to these amendments to the Regulations, the purpose of section 8.3 was to make the failure to obey the directions of an enforcement officer punishable as an offence under the CSA. 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 (CSA 2001), which will come into force in the near future, expressly sets out the particular administrative directions, the contravention of which will constitute an offence, section 8.3 of the Regulations will become redundant on the day of the coming into force of that Act. Therefore, section 8.3 of the Regulations has been repealed.

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 across the country.

The majority of the boating safety community supports the amendments. With testing no longer permitted in the candidate's residence and with more controls for testing during public events, many of the problems formerly associated with the Operator Competency Program will be eliminated. The credibility of the program will be restored as stakeholders see that TC has taken steps to have greater control over how course providers 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 will be greater assurance that the Pleasure Craft Operator Cards are being issued to candidates who have demonstrated that they possess the knowledge of boating safety matters 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 may be some monetary costs associated with the test protocol procedures in the Regulations. As it is no longer possible for a candidate to pass a test at their residence, course providers are required to find alternate testing locations, such as the rental of a hall, for example. At this time, it is not possible to put a dollar value on the increased costs to course providers, as information is not available on the number of people who may have completed the boating safety test from a residence before the coming into force of these Regulations. Instead of renting a classroom for testing an individual or a group of individuals, there may be other alternatives for course providers to consider. For example, a public library might 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 a public library as a test site. Course providers may 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, it is anticipated that these costs will be passed on to the candidate and that the cost of taking a boating safety course or test will increase somewhat.

A preliminary scan for environmental impacts has been undertaken in accordance with the criteria of TC'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 environmental effects of this initiative are not likely to yield a different determination.

Consultations with stakeholders on the Operator Competency Program began in 2002. Stakeholders included the boating public, enforcement officials, boating safety associations, marine manufacturers and governments. They 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 agreed that the Regulations required strengthening to improve the overall credibility of the program. This was evident through the letters that have been forwarded to TC and the media that have generated negative attention about the program.

These amendments were published in the Canada Gazette, Part I, on October 1, 2005, followed by a 30-day comment period. TC responded to all stakeholder comments in the same manner as the comments were originally received, and stakeholders were informed that their comments would be taken into consideration with respect to the proposed amendments and/or any future changes to the regulatory regime. The comments received were generally very supportive and the changes made to the Regulations since pre-publication reflect points that required clarification. It is important to note that the majority of comments were related to the next round of proposed changes to the regulatory regime, which would include new accreditation and auditing requirements for all course providers. It is anticipated that these amendments will be finalized in early 2008 under the CSA 2001.

Following pre-publication, paragraph 3(2)(d) was added in support of stakeholder comments and agreement for the acceptance of higher levels of competency as identified in the Marine Certification Regulations. Subsection 3(4) gives course providers the ability to issue a Pleasure Craft Operator Card to anyone identified as having levels of competency in excess of the minimum competency requirements that must normally be met by operators of pleasure craft.

Subparagraph 7(2)(d)(ii) was changed to make it clear that the test site is a site that is in no way under the control of a candidate taking the test, such as a site that is the residence of a candidate taking the test. Stakeholders agreed that any testing in the residence of a candidate is too difficult to monitor or enforce.

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, TC may suspend the accreditation of an accredited course or test or may suspend the approval of a test protocol. Section 562.14 of the CSA contains the offence and punishment provisions for non-compliance with the Regulations.

Since the amendments were pre-published in the Canada Gazette, Part I, there has been more than adequate time for review and comment. In addition, both TC and course providers affected by the changes to the Regulations have had sufficient time to prepare for the implementation of the new requirements. As such, the amendments will come into force on the day on which they are registered.

André Bégin
Manager, Operator Competency Program (AMSP)
Transport Canada, Marine Safety
Place de Ville, Tower C
330 Sparks Street, 11th Floor
Ottawa, Ontario
K1A 0N5
Telephone: 613-990-4826
Fax: 613-991-4818
Email: begina@tc.gc.ca