Page:United States Statutes at Large Volume 119.djvu/2849

 PUBLIC LAW 109–148—DEC. 30, 2005

119 STAT. 2831

review, whether by mandamus or otherwise, any action by the Secretary under this paragraph. ‘‘(6) MEANINGS OF TERMS.—In applying sections 262, 263, 264, 265, and 266 for purposes of this section— ‘‘(A) the terms ‘vaccine’ and ‘smallpox vaccine’ shall be deemed to mean a covered countermeasure; ‘‘(B) the terms ‘smallpox vaccine injury table’ and ‘table established under section 263’ shall be deemed to refer to the table established under paragraph (4); and ‘‘(C) other terms used in those sections shall have the meanings given to such terms by this section. ‘‘(c) VOLUNTARY PROGRAM.—The Secretary shall ensure that a State, local, or Department of Health and Human Services plan to administer or use a covered countermeasure is consistent with any declaration under 319F–3 and any applicable guidelines of the Centers for Disease Control and Prevention and that potential participants are educated with respect to contraindications, the voluntary nature of the program, and the availability of potential benefits and compensation under this part. ‘‘(d) EXHAUSTION; EXCLUSIVITY; ELECTION.— ‘‘(1) EXHAUSTION.—Subject to paragraph (5), a covered individual may not bring a civil action under section 319F–3(d) against a covered person (as such term is defined in section 319F–3(i)(2)) unless such individual has exhausted such remedies as are available under subsection (a), except that if amounts have not by law been provided for the Fund under subsection (a), or if the Secretary fails to make a final determination on a request for benefits or compensation filed in accordance with the requirements of this section within 240 days after such request was filed, the individual may seek any remedy that may be available under section 319F–3(d). ‘‘(2) TOLLING OF STATUTE OF LIMITATIONS.—The time limit for filing a civil action under section 319F–3(d) for an injury or death shall be tolled during the pendency of a claim for compensation under subsection (a). ‘‘(3) RULE OF CONSTRUCTION.—This section shall not be construed as superseding or otherwise affecting the application of a requirement, under chapter 171 of title 28, United States Code, to exhaust administrative remedies. ‘‘(4) EXCLUSIVITY.—The remedy provided by subsection (a) shall be exclusive of any other civil action or proceeding for any claim or suit this section encompasses, except for a proceeding under section 319F–3. ‘‘(5) ELECTION.—If under subsection (a) the Secretary determines that a covered individual qualifies for compensation, the individual has an election to accept the compensation or to bring an action under section 319F–3(d). If such individual elects to accept the compensation, the individual may not bring such an action. ‘‘(e) DEFINITIONS.—For purposes of this section, the following terms shall have the following meanings: ‘‘(1) COVERED COUNTERMEASURE.—The term ‘covered countermeasure’ has the meaning given such term in section 319F–3. ‘‘(2) COVERED INDIVIDUAL.—The term ‘covered individual’, with respect to administration or use of a covered countermeasure pursuant to a declaration, means an individual—

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