---
kind: "section"
citation: "40 C.F.R. § 33.408"
title: "40"
number: "33.408"
heading: "May a recipient use race and/or gender conscious measures as part of this program?"
url: "https://uscodex.org/cfr/40/33.408"
---

# §33.408. May a recipient use race and/or gender conscious measures as part of this program?

- (a) Should the good faith efforts described in [subpart C](/cfr/40/subpartC.md) of this part or other race and/or gender neutral measures prove to be inadequate to achieve an established fair share objective, race and/or gender conscious action (e.g., apply the subcontracting suggestion in [§ 33.301(c)](/cfr/40/33.301.md?p=c) to MBEs and WBEs) is available to a recipient and its prime contractor to more closely achieve the fair share objectives, subject to [§ 33.409](/cfr/40/33.409.md). Under no circumstances are race and/or gender conscious actions required by EPA.
- (b) Any use of race and/or gender conscious efforts must not result in the selection of an unqualified MBE or WBE.

## Notes

### Authority

Authority: 15 U.S.C. 637 note; 42 U.S.C. 4370d, 7601 note, 9605(f); E.O. 11625, 36 FR 19967, 3 CFR, 1971 Comp., p. 213; E.O. 12138, 49 FR 29637, 3 CFR, 1979 Comp., p. 393; E.O. 12432, 48 FR 32551, 3 CFR, 1983 Comp., p. 198, 2 CFR part 200.

### Source

Source: 73 FR 15913, Mar. 26, 2008, unless otherwise noted.