Legal Briefing

Who needs to be current?

Maintaining night currency has always been a challenge for me. I just don't get many opportunities to fly at night. So, when I know I'm going to fly somewhere and after-daylight flight is possible, I usually spend some time with a flight instructor getting proficient and current. Although I am out of currency, the flight instructor is night current.

But, does the flight instructor have to be night current in this situation? The FAA's interpretation of the applicable federal aviation regulation says "no." Let's review the recent flight experience requirements that will allow you to fly an aircraft at night with passengers. FAR 61.57(b), Night takeoff and landing experience, states:

Except as provided in paragraph (e) of this section, no person may act as pilot in command of an aircraft carrying passengers during the period beginning 1 hour after sunset and ending 1 hour before sunrise, unless within the preceding 90 days that person has made at least three takeoffs and three landings to a full stop during the period beginning 1 hour after sunset and ending 1 hour before sunrise, and--

That person acted as sole manipulator of the flight controls; and

The required takeoffs and landings were performed in an aircraft of the same category, class, and type (if a type rating is required).

The FAA has long held that authorized instructors and individuals receiving instruction are not passengers with respect to each other.

"We agree that, for purposes of section 61.57(b), an authorized instructor providing instruction in an aircraft is not considered a passenger with respect to the person receiving instruction, even where the person receiving the instruction is acting as [pilot in command]. (The instructor must be current, qualified to instruct, and hold a category, class, and type rating in the aircraft, if a class and type rating is required.) The instructor is not a passenger because he is present specifically to train the person receiving instruction. Neither is the person receiving instruction a passenger with respect to the instructor. This training may take place, even though neither pilot has met the 61.57(b) requirements."

But, let's take it one fact further. What if the individual receiving the instruction is also not rated in the aircraft? Can they both be in the airplane when neither is night current? The FAA's answer is "yes."

"[Our earlier opinion] applies where the individual receiving instruction is not rated in the aircraft. [That] opinion was based on the instructor-student relationship, and was not limited by specific rating of the particular student. Therefore, it would be legal for a properly rated and current instructor (except for 61.57[b]), and a student pilot (who is not yet rated in the airplane but receiving training), to be on board the airplane together during night hours."

The FAA limits the application of this interpretation to anyone actively receiving instruction. A third person in the aircraft--even one who is a student and may swap seats with the other student during the flight operation--would probably be considered a passenger and would thus necessitate that a person acting as PIC on that aircraft be night current.

I don't know if this makes it any easier to stay night current. But the next time I check whether my flight instructor is night current, the answer may not matter from a regulatory point of view.

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.