Legal Briefing

Who's in charge on the checkride

If you are a student pilot, you have been flying with a certificated flight instructor, and you understand that your CFI is the pilot in command (PIC) of the aircraft during those instructional flights. After all, you do not yet hold a private pilot certificate, so how could you be legally responsible for a flight when you are just learning to fly?

In fact, the federal aviation regulations identify the flight instructor as the PIC of the airplane and you as a passenger on board that airplane. This regulatory allocation of title and responsibility understandably changes a bit after you have been trained sufficiently to fly the aircraft on solo flights. Then, as the sole occupant of the aircraft who is solely responsible for the safe conduct of that flight, you are the pilot in command.

Have you ever thought about who is in charge when you take your checkride with a designated pilot examiner? Probably not. After all, you've got plenty of other things to think about when preparing for the checkride. If you thought about it at all, you could very well surmise that the examiner, like the flight instructor, is the pilot in command. But the FARs take the guesswork out of this and place the PIC status on you, the applicant during the checkride, unless you and the examiner agree otherwise.

According to FAR 61.47:

1. An examiner represents the Administrator for the purpose of conducting practical tests for certificates and ratings issued under this part and to observe an applicant's ability to perform the areas of operation on the practical test.
2. The examiner is not the pilot in command of the aircraft during the practical test unless the examiner agrees to act in that capacity for the flight or for a portion of the flight by prior arrangement with:
1. The applicant; or
2. A person who would otherwise act as pilot in command of the flight or for a portion of the flight.

So, the FAA has spelled out here that the examiner will not be the PIC. That leaves you. But, without a private pilot certificate, or without otherwise having the appropriate qualifications in the aircraft, how can you act as pilot in command and carry passengers? Isn't there a regulation that prohibits a student pilot from carrying passengers? Yes, there is, and here is how the FAA helps you to get around FAR 61.89(a)(1).

First, the FAA interprets the status of the examiner to be neither a passenger nor a crewmember. Rather, the examiner is a representative of the FAA whose duty is to observe whether the applicant is competent in performing the functions necessary for a particular certificate or rating.

Then, FAR 61.47(c) helps us out some more:

3. Notwithstanding the type of aircraft used during the practical test, the applicant and the examiner (and any other occupants authorized to be on board by the examiner) are not subject to the requirements or limitations for the carriage of passengers that are specified in this chapter.

By legal interpretation, the FAA considers the pilot examiners to be sui generis, or "in a class of their own"-that is, the examiner is not a passenger without authority to prescribe the order of maneuvers or discontinue the test, and the examiner is not a crewmember with responsibility for the safe operation of the aircraft. So, the examiner constitutes an entirely different entity-one who is not in charge, but does have authority.

What does this mean to you? Probably not much in a practical sense. The regulation seems to have come about simply so that the FAA could appropriately designate the duties of the people on board the aircraft. After all, you are supposed to be demonstrating your ability to be PIC of the airplane, so you will be handling the controls and the radios and following the directions of the examiner in flying the aircraft safely from startup to shutdown. And the examiner is supposed to be evaluating whether you have that PIC ability by directing the conduct of the flight and observing your actions in controlling the aircraft maneuvers and performing within the Practical Test Standards.

In short, then, you are to perform as PIC of the aircraft. Thus the regulation treats you as pilot in command.

Kathy Yodice is an attorney with Yodice Associates in Washington, D.C., which provides legal counsel to AOPA and administers AOPA's Legal Services Plan. She is an instrument-rated private pilot.