Across Two Rulemakings, the NRC Proposes to Modernize, Streamline and Risk Inform Its Fitness-for-Duty Requirements

In a separate rulemaking on May 1, 2026, the NRC published a proposed rule that would establish a licensing framework for microreactors and other low-consequence reactor designs under 10 C.F.R. Part 57. The proposal would offer alternative FFD compliance pathways specifically for Part 57 licensees including a new Subpart P better suited to smaller workforces, remote facilities and alternative operating methods.

Taken together, the proposals show the NRC moving toward a more flexible and risk-informed approach to FFD regulation. But they do so through different mechanisms. The Modernizing Security Requirements proposal would update the baseline Part 26 pathway that applies to the existing regulated community; whereas the changes in the Part 57 rulemaking would create an optional alternative pathway for new eligible facilities. In both cases, the NRC has stated that its core FFD objective remains in full force: providing reasonable assurance that individuals performing covered duties are trustworthy, reliable and free from impairment by drugs, alcohol, fatigue or other causes.

The major revisions proposed in each rulemaking are summarized below. Please contact the Pillsbury team for more information on the proposed rulemakings.  

Modernizing Security Requirements
The proposed revisions to Part 26 for current licensees in the Modernizing Security Requirements rulemaking include significant changes to the NRC’s drug and alcohol testing program, to the implementation of FFD requirements during construction, to fatigue management and remote assessment requirements and other items.

Drug and Alcohol Testing
The Modernizing Security Requirements rulemaking would make several important changes to the drug and alcohol testing regulations. These changes are intended to provide licensees with greater flexibility in implementing requirements. Under the proposed revisions, licensees would now be permitted to collect and test either urine or oral fluid specimens for all Part 26 testing conditions, including pre-access, random, for-cause, post-event, follow-up and other required testing. The NRC views oral fluid testing as a useful supplement to urine testing because oral fluid collection can be directly observed, making subversion more difficult.

The proposed rule would also revise random testing rates. Current Part 26 generally uses a 50 percent annual random testing rate for covered individuals. The proposal would retain the 50 percent rate for contractors, vendors and licensee employees who perform critical safety- or security-related functions but would reduce the rate to 25 percent for other licensee employees subject to Part 26. This change reflects the NRC's view that long-term FFD performance data supports a risk-informed reduction for categories of employees with lower observed positive and subversion rates. This change could result in a meaningful cost and burden reduction for nuclear utilities and other NRC licensees.

To address small testing populations, the NRC would require use of a consortium or third-party administrator when the number of individuals in a random testing pool is so small that selections could become predictable. In that circumstance, the third-party administrator would manage a combined testing pool, make selections throughout the year and ensure that the applicable annual testing rates are maintained. This proposal is especially relevant to future facilities with smaller staffing models, but it would remain part of the existing Part 26 framework.

The rule would also update blind performance testing by eliminating the elevated number of blind performance test samples (BPTS) required during the first 90 days after a licensee begins using a new HHS-certified laboratory, clarifying that licensees may submit BPTS on either a site-specific or fleetwide basis, and by replacing certain prescriptive quarterly BPTS requirements with a more flexible mix of positive, negative and false-negative challenge samples.

Construction-Stage Flexibility
The proposed rule would also adjust construction-stage FFD requirements to better align the timing and scope of Part 26 obligations with radiological risk. Under current requirements, licensees must transition from the more limited construction-stage FFD program in Subpart K to the full Part 26 program before receiving nuclear fuel assemblies on site. The NRC’s proposed changes would move that milestone to initial fuel load into the reactor. The NRC's rationale is that unirradiated fuel does not materially increase safety or security risk merely by being onsite; the relevant risk increases when fuel is loaded into a reactor.

The proposed rule would also allow licensees and other entities to escort certain construction workers performing activities covered by Section 26.4(f), rather than subjecting those workers to an FFD program. Escorts would themselves have to be subject to an appropriate Part 26 program, and the licensee would need written procedures for processing, escorting and controlling escorted individuals and defining escort responsibilities. These construction-stage changes would not eliminate Part 26 controls during new reactor construction. Rather, they would adjust the timing and scope of those controls to better match risk.

Fatigue Management and Remote Assessments
The proposal would also preserve minimum fatigue protection while providing additional flexibility for rare events that disrupt normal staffing. The proposed rule would add exceptions to the work-hour controls in Sections 26.205(c) and (d) in the event that a sequestration event requires personnel to remain onsite because of unavoidable external conditions. Under these conditions, licensees would be allowed to implement alternative fatigue management controls for up to 60 days instead of relying on ordinary work hour limits or repeatedly requesting waivers.

The proposed rule would also expand the use of electronic communications for fitness determinations and fatigue assessments. Proposed § 26.189(c) would remove the current prohibition on using electronic means to conduct face-to-face for-cause determinations of fitness, provided that the video communication method supplies sufficient visual and aural clarity. However, for-cause drug and alcohol testing determinations, and for-cause fatigue assessments, would need to be supported by an individual physically present with the person being assessed.

Similarly, proposed revisions would allow certain work-hour waiver assessments and fatigue assessments to be conducted remotely using electronic communications. In both cases, the rule would require an in-person supporting individual trained under the applicable FFD and fatigue-management provisions. The supporting individual's role is important because a remote professional may not be able to observe certain sensory or physical cues, such as the smell of alcohol or other aspects of the individual's condition that may not be apparent over video.

The practical effect of these changes would be to give existing and future licensees more flexibility to use telemedicine, centralized medical professionals or remote evaluators for time-sensitive FFD determinations, while preserving an onsite observation component where the assessment depends on immediate physical condition. The change would also enable the deployment of reactors in remote locations (mining, oil exploration or offshore oil production) that would have made the prior testing requirements challenging to meet.

Administrative Reductions and Program Efficiencies
The proposed rule would reduce several administrative burdens while preserving core FFD oversight. The NRC would eliminate the requirement for licensees to conduct annual audits of Health and Human Services (HHS)-certified laboratories because it concluded that HHS inspections and the Part 26 blind performance testing program already provide sufficient oversight. However, licensees would remain responsible for the effectiveness of their own FFD programs and oversight of contractors and vendors.

The NRC also proposes eliminating Subpart F governing licensee testing facilities, finding it obsolete because no licensee currently uses onsite testing facilities, and HHS-certified laboratories now provide faster, more comprehensive testing, including for non-urine specimens.

Several changes would update the qualifications and responsibilities of FFD personnel. Physicians with equivalent foreign medical degrees could serve as Medical Review Officers (MRO) if they otherwise satisfy Part 26 requirements, and state-licensed or certified marriage and family therapists would become eligible to serve as Substance Abuse Experts. The proposal would also streamline medical review requirements by allowing up to 10 business days, rather than five, to complete a shy-bladder evaluation for good cause.

Finally, the rule would reduce training and reporting burdens. The nominal interval for FFD refresher training would move from 12 months to 24 months, while preserving the ability to require more frequent training where performance issues or other indicators warrant it. The 24-hour NRC notification requirement for significant FFD policy violations by supervisory personnel would be narrowed to supervisors performing safety- or security-significant functions. Other violations would continue to be captured through annual FFD performance reporting.

Proposed FFD Requirements for Part 57 Microreactors and Comparable Licensees
The NRC's proposed Part 57 rule would affect FFD requirements for microreactors and other comparable-risk facilities by creating alternatives to the traditional Part 26 pathway. The proposal recognizes that many Part 57 facilities may have small operating staff, remote or distributed deployment models, extensive automation and lower potential accident consequences than large light-water reactors. For those facilities, the NRC proposes to tailor FFD requirements to the facility's risk and operating characteristics while maintaining the underlying objective that covered individuals remain fit for duty.

Proposed Subpart P
The centerpiece of the Part 57 FFD proposal is proposed Part 26 Subpart P, an alternative FFD framework available to eligible Part 57 licensees. Subpart P is modeled primarily on the construction-stage FFD program in Subpart K and incorporates selected requirements from other Part 26 subparts. Unlike the traditional operating-reactor framework, Subpart P is intended to be more performance-based and less prescriptive, giving licensees greater flexibility in structuring and administering FFD programs while maintaining the NRC's core fitness-for-duty objectives.

Subpart P would tailor behavioral observation and fatigue-related processes to Part 57 operations. It would allow greater use of remote technologies, including live video and audio observation where appropriate, to account for facilities that may not follow the staffing and onsite supervision model assumed by the traditional Part 26 framework. As stated above, this change could facilitate the deployment of low-consequent reactors in remote locations. Similarly, Subpart P would accommodate remote or centralized assessment capabilities while retaining controls needed to identify impairment and fatigue in individuals performing covered duties.

Subpart P also proposes an even broader set of drug testing technologies and procedures for licensees. It would allow covered entities to use oral fluid, urine, hair and non-invasive portal-area screening technologies that passively test for drugs, alcohol or both. Hair testing and non-invasive portal screening could be used to support trustworthiness determinations for Schedule I and II drugs, but a positive result from those methods would generally trigger for-cause testing rather than serve as the independent basis for sanctions. Blood testing would be limited to circumstances in which it is performed for a valid medical reason by an MRO. Given the ubiquity of portal monitoring at operating nuclear plants, it is likely that these technologies could be readily deployed, however, there may be potential pushback from labor unions on this capability.

Multiple Compliance Pathways
Although Subpart P is the centerpiece of the FFD changes in the rulemaking, Part 57 licensees are not required to adhere to that new framework. Instead, licensees have the option to choose among three FFD compliance pathways: (1) adhere to the traditional Part 26 framework; (2) comply with new Part 26 Subpart P; or (3) for qualifying facilities, implement an FFD program of the licensee's own specification.

The self-designed program option is narrower than Subpart P and allows licensees to propose FFD programs provided they can demonstrate that (1) the reactor would not require operator action to remain within 1 rem (10 mSv) total effective dose equivalent (TEDE) following the onset of a reactor accident; or (2) a credible operator or maintenance error could not result in exceeding 1 rem TEDE. Licensees pursuing this alternative FFD program must demonstrate to the NRC that the self-designed program would be effectively implemented and commensurate with the radiological risks presented by the facility in question.

Conclusion
Taken together, the NRC’s recent proposals to amend FFD requirements reflect an effort to shift toward more efficient, risk-informed and technology-inclusive regulation of nuclear facilities. In both proposed rulemakings, the NRC is incorporating new technologies while eliminating regulations that it perceives as outdated, duplicative or poorly matched to emerging reactor designs. To the authors, these changes could result in a regulatory “win-win” where the financial and paperwork burden is reduced on licenses and is replaced by technological changes (telemedicine and portal monitor screening) that provide a more effective and efficient method of ensuring that workers meet FFD expectations.

However, the distinction between the two rulemakings is important. The Modernizing Security Requirements proposal would make the existing Part 26 program more efficient and technology-inclusive, but it would retain the traditional compliance pathway. The Part 57 rulemaking, by contrast, would create a separate FFD pathway specifically to accommodate the smaller workforces, remote operations and lower-consequence designs inherent to microreactors and other low-consequence reactor designs.  

For licensees and applicants, the two rulemakings therefore raise different implementation questions. Current licensees should focus on how the modernization proposal would affect procedures, contracts, training, testing programs, fatigue-management controls and reporting obligations. On the other hand, potential Part 57 applicants should separately evaluate which FFD pathway best fits their design and operating model, including whether the traditional Part 26 framework in proposed Subpart P, or a self-specified FFD program would provide the most appropriate and defensible compliance approach.