PUBLIC LAW 104-208—SEPT. 30, 1996 110 STAT. 3009-420 "(ii) FACTORS TO BE CONSIDERED.—In determining whether an insured depository institution has encountered hardships referred to in clause (i), the appropriate Federal banking agency shall consider factors such as the size of the institution, and whether the institution has made a good faith effort to elect or name additional competent outside directors to the board of directors of the institution who may serve on the internal audit committee.". (c) PUBLIC AVAILABILITY.—Section 36(a)(3) of the Federal Deposit Insurance Act (12 U.S.C. 1831m(a)(3)) is amended by adding at the end the following: "Notwithstanding the preceding sentence, the Corporation and the appropriate Federal banking agencies may designate certain information as privileged and confidential and not available to the public". SEC. 2302. INCENTIVES FOR SELF-TESTING. (a) EQUAL CREDIT OPPORTUNITY. — (1) IN GENERAL. — The Equal Credit Opportunity Act (15 U.S.C. 1691 et seq.) is amended by inserting after section 704 the following new section: "SEC. 704A. INCENTIVES FOR SELF-TESTING AND SELF-CORRECTION. 15 USC 1691c-I. " (a) PRIVILEGED INFORMATION.— "(1) CONDITIONS FOR PRIVILEGE.—^A report or result of a self-test (as that term is defined by regulations of the Board) shall be considered to be privileged under paragraph (2) if a creditor— "(A) conducts, or authorizes an independent third party to conduct, a self-test of any aspect of a credit transaction by a creditor, in order to determine the level or effectiveness of compliance with this title by the creditor; and "(B) has identified any possible violation of this title by the creditor and has taken, or is taking, appropriate corrective action to address any such possible violation. "(2) PRIVILEGED SELF-TEST.—I f a creditor meets the conditions specified in subparagraphs (A) and (B) of paragraph (1) with respect to a self-test described in that paragraph, any report or results of that self-test— "(A) shall be privileged; and "(B) may not be obtained or used by any applicant, department, or agency in any— "(i) proceeding or civil action in which one or more violations of this title are alleged; or "(ii) examination or investigation relating to compliance with this title. "(b) RESULTS OF SELF-TESTING.— "(1) IN GENERAI..—No provision of this section may be construed to prevent an applicant, department, or agency from obtaining or using a report or results of any self-test in any proceeding or civil action in which a violation of this title is alleged, or in any examination or investigation of compliance with this title if— "(A) the creditor or any person with lawful access to the report or results— "(i) voluntarily releases or discloses all, or any part of, the report or results to the applicant, department, or agency, or to the general public; or
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