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    Default Legal consequences of the FCA amendment Act

    Below is a document sent out by the SAPS to their members in a attempt to explain the implications of the implemented Act. It might be wise for people whom this affects ,to keep a copy handy ,as I'm sure not all SAPS members will be aware of, or even understand it.




    South African Police Service Suid –Afrikaanse Polisiediens
    __________________________________________________ ________________________________________
    Private Bag X94 FaxNo:
    Privaatsak FaksNo:
    __________________________________________________ ________________________________________


    Your reference/U verwysing: THE NATIONAL COMMISSIONER
    DIENASIONALE KOMMISSARIS
    My reference/My verwysing: 27/5/1/1 PRETORIA
    0001
    Enquiries/Navrae: Maj Gen Nkomo
    Tel: (012) 353 6580


    A. All Provincial Commissioners
    B. All Component Heads of Legal Services: Head Office
    C. All Provincial Heads: Legal Services
    D. All Provincial Heads: Firearms, Liquor and Second-Hand Goods Control (FLASH)

    LEGAL CONSEQUENCES OF THE PUTTING INTO OPERATION OF CERTAIN SECTIONS OF THEFIREARMS CONTROL AMENDMENT ACT, 2006 (ACT NO. 28 OF 2006 )

    A-D.1. The circular 27/5/1/1, dated28 December 2010 regarding the implementation of the Act, has reference. This circular is intended to correct certain informationset out in the said circular as well as to provide further explanationsregarding the legal implications of the implementation of the Amendment Act.

    2. Sections 1(b), 1(i), 2, 4, 8,9 10, 18 and 52 of the Firearms Control Amendment Act, 2006, are beingput into operation with effect from 10 January 2011. The Proclamation for thecommencement of the said sections of the Act and the relevant Regulations havebeen circulated under cover of the said circular and are not circulated again. Circular27/5/1/1 dated 28 December 2010 is hereby revoked.


    3. The legal implications of theAmendment Act are the following:

    MUZZLE LOADING FIREARMS

    3.1 The definition of antiquefirearm’ (meaning a muzzle loading firearm manufactured before 1900 or areplica thereof) is deleted from the Act, and a definition is inserted of a ‘muzzleloading firearm”. It must be noted that in section 5 of the Act, thereference to an antique firearm” has also been deleted and “a muzzleloading firearm” is reflected in section 5 as a device that is regarded as afirearm for purposes of the Act. Throughout the Act, it is indicated whichprovisions are applicable to firearms or muzzle loading firearms respectively.The position with cap and ball (black powder) revolvers must, however, benoted:

    Although cap and ball(black powder revolvers are regarded as firearms from 10 January 2011 and wouldbe required to be licensed in terms of the Act no police action must be takenagainst any person for the possession of a cap and ball revolver. The fact thatthe Act does not provide, as is the case with muzzle loading firearms, for thetransitional possession of cap and ball revolvers in the licensing process, thematter needs to be addressed on a policy level. A further statement on how theSouth African Police Service will deal with cap and ball revolvers will be madeat a later stage. In the meantime it must be clear that no person must bearrested for the possession of a cap and ball revolver from 10 January 2011,until the matter is resolved.

    POSSESSION OF MUZZLE LOADING FIREARMS

    3.2 Previously a muzzle loading firearm (antique firearm) could belegally possessed without any formalities. The amended section 3 in subsection(2) provides that no person may possess a muzzle loading firearm if he or shehas not been issued with the relevant competency certificate. Possession of amuzzle loading firearm without a competency certificate is criminalised and thepenalty for a contravention is the same as for the possession of a firearmwithout a licence. In view of the transitional provision in Item 1A, however,no prosecution may be instituted during the period of one year from thecommencement of the Amendment Act in respect of persons who have not appliedfor the relevant competency certificate within’, such period(s).


    COMPETENCY CERTFICATES FOR MUZZLELOADING FIREARMS

    3.3 Persons who are in possession of muzzle loading firearms must withinone year from the commencement of the Act, in other words, one year from 10January 2011, apply for the relevant competency certificate for a muzzleloading firearm. To remain in lawful possession it is therefore not necessarythat the person must be in possession of such competency certificate within oneyear, only that he or she applied within that period. The Minister ofPolice may also extend that period, in which case no person may within theextended period be prosecuted for being in possession of a muzzle loadingfirearm without the relevant competency certificate. Item IA(4) of the Scheduleclearly states that once a person has applied for the relevant competencycertificate for a muzzle loading firearm, he or she remains in lawfulpossession thereof until the application has been decided.

    3.4 APPLICATION FOR A COMPETENCY CERTIFICATE TO POSSESS A MUZZLE LOADINGFIREARM (SAPS5I7)

    RESPONSIBILITIES OF THE APPLICANT

    3.4.1 The Applicant must submit a duly completed application form(SAPS517) which is the application for a competency certificate to the nearestpolice station.

    3.4.2 The following supporting documentation must be attached to theapplication form:

    3.4.2.1 Two recent (not older than 3 months) colour photographs(passport size), which shall
    (i) Show a full and unobscured frontview of the applicant’s head, face and shoulders and have a neutral background(no headdress); and
    (ii) be to the dimensions of 33 mm(width) X 40mm (height).

    3.4.2.2Acertified copy of the applicant’s identity document or passport onwhich the applicants photo and personal particulars are reflected;

    3.4.2.3Acertified copy of the proficiency training certificate obtainedform an accredited training institution in terms of the provisions of the Act;and

    3.4.2.4Acertified copy of the applicant’s permanent residential address(permit for non-South African citizens) must be submitted by all applicants.

    3.5 RESPONSIBILITIES OF THEDESIGNATED FIREARMS OFFICER IN CASE OF APPLICATION FOR A COMPETENCY CERTIFICATETO POSSESS A MUZZLE LOADING FIREARM

    3.5.1 Receive the application form(SAPS 517) and the supporting documents from the applicant.

    3.5.2 Check the correctness andcompleteness of the application.

    3.5.3 Check and verify the contentsof the supporting documentation.

    3.5.4 Hand the application form andsupporting documentation back to the applicant if incomplete.

    3.5.5 If the application is complete

    3.5.5.1 Obtain two full sets offingerprints of the applicant as required in section 6(1 )(a) of the Act onform SAPS 91(a) (Enquiry) form;

    3.5.5.2 Record the details of theapplication in the SAPS 86 register;

    3.5.5.3 Endorse the SAPS 86reference number in red ink on the application form;

    3.5.5.4 Capture the information ofthe application form on the Enhanced Firearms Register System (EFRS). In caseswhere the Designated Firearms Officer does not have access to the EFRS, he orshe must contact the Designated Firearms Officer at the Firearms RegistrationCentre (identify enabled police station) to obtain a system generatedapplication number and the exact amount that needs to be paid by the applicant.

    3.5.5.5 Issue a remittance advice(SAPS 523(a)) to the applicant. Refer the applicant to the relevant office forpayment.

    3.5.5.6 Obtain proof of payment(expenditure receipt Z 263) form the applicant. Make a copy of the proof ofpayment and certify it;

    3.5.5.7 Attach a copy of the proofof payment to the application form;

    3.5.5.8 Update the details ofpayment on the EFRS;

    3.5.5.9 Record the SAPS 86 and thesystem generated application number on the back of the applicant’s photographsin black ink. Caution must be exercised to prevent any indenture on thephotograph;

    3.5.5.10 Scan the photograph(s),fingerprint)(s) and signature of the applicant on the EFRS;

    3.5.5.11 Write the system generatedapplication number in black ink on the application form an in red ink in columna of the SAPS 86 Register,

    3.5.5.12 All pages of theapplication must be endorsed in red ink on the top right hand corner as MuzzleLoading Firearm’

    3.5.5.13 Print and date stamp theacknowledgement of receipt (SAPS 523) for the application from the EFRS. Incases where the Designated Firearms Officer does not have access to the EFRS,he/she must complete the acknowledgement of receipt (SAPS 523) form;

    3.5.5.14 Issue the acknowledgementof receipt (SAPS 523) to the applicant;

    3.5.5.15 Update the status of theapplication on the EFRS.

    3.6 The validity period for acompetency certificate for a muzzle loading firearm is ten (10) years. Note:Previously no competency certificate, permit or licence was required to possessa muzzle loading firearm. The renewal of competency certificates for muzzleloading firearms will therefore only become applicable at the soonest after2021.

    RENEWAL OF COMPETENCY CERTIFICATES

    4. The second important amendment relates to the fact that the Act previously contained no mechanism and no obligation to renew a competency certificate. It needs to be made clear that possession of a firearm without a
    licence is criminalised and that the validity period of the competency certificate does not determine the lawfulness of possession of thefirearm. The issuing of a licence is dependent on the possession of acompetency certificate, but possession of the firearm only becomes unlawful upon expiry of the licence and not expiry of the competency certificate.

    4.1 From 10 January 2011 application for the renewal of a competency certificate must be made ninety (90) days before the date of expiry of the competency certificate. In some instances the competency certificates of persons who apply for the renewal of firearms
    licences after 10 January 2011, the validity period of the competency certificateas indicated on the competency certificate may have expired already. It must benoted that instructions were previously issued that persons who renew their licences issued under the 2000 Act, could apply, in lieu of a mechanism to renew acompetency certificate, for a new competency certificate. In respect of all such applications made before 10 January 2011, the person may not be prejudiced for not applying at least ninety (90) days before the expiry of the competency certificate, as long as he or she applied for the renewal of the licence. In respect of applications from 10 January 2011 onwards, the expiry of the competency certificates issued before 10 January 2011, can also not result into prejudice to the applicant, as the Amendment Act aligns the period of validityof the competency certificate to that of the relevance licence.

    4.2 Competency certificates issued after 10 January 2011 must be issued with the same period of validity of therelevant licence applied for, and the minimum period of ninety (90) days before expiry of both the licence and competency certificate will be applicable forthose competency certificates. The prescribed form for the renewal of acompetency certificate is attached to the Regulations published on 17 December2010 (SAPS 517(g)). The minimum period for the application of the renewal of alicence in the Act remains ninety (90) days before and after the amendment ofthe Act.

    4.3 Section 1 of the Act, alsoprovides that ‘If the application for the renewal of the competency certificatewas lodged within the relevant time period, it remains valid until theapplication has been decided”. The Act now provides that a competencycertificate remains valid for the period of validity or the licence in respectof which it has been issued. If the licence was issued in respect of selfdefence, the competency certificate will be valid for five (5) years. If,however, the licence had been issued for occasional hunting or occasionalsports shooting, the validity of the competency certificate is now for a periodof 10 years.
    In viewthereof that all competency certificates were previously valid only for five(5) years, persons who are in possession of licences issued for a period of ten(10) years need not renew their competency certificates in respect of thatcategory of firearms before ninety (90) days before the expiry of the relevantcompetency certificate, but ninety (90) days before the expiry of the saidlicence.

    4.4
    In the case of a person who has a licence andcompetency certificate for a handgun for self defence as well as a handgun foroccasional hunting, the view is held that the existing competency certificateremains valid for the period of the licence with the longest period ofvalidity, and when the licence for self defence is renewed, the applicant wouldbe in possession of a valid competency certificate and need not apply forrenewal of the competency certificate. That will only be in the exceptionalcase where a person is in possession of a competency certificate for aparticular category of firearm both for self defence and occasional sportsshooting/hunting.

    4.5 The Amendment Act does not havea transitional provision in respect of the validity period of a competencycertificate and the provision in respect of the validity of competencycertificates to run concurrently with the validity period of the licencebecomes applicable from 10 January 2011 irrespective of the date printed on thecompetency certificate. The fact that the date printed on the competencycertificate has lapsed becomes irrelevant in view of the fact that the validityof the competency certificate has been aligned from 10 January 2011 with theperiod of validity of the licence. In terms of section 24 of the Act, anapplication for the renewal of a licence must be lodged ninety (90) days beforethe expiry of the licence. The effect of the aligning of the period of validityof the competency certificate with the period of validity of the relevantlicence, to possess a firearm, means that when a person applies for the renewalof his or her firearms licence, he or she must simultaneously apply for therenewal of his or her competency certificate (both at least ninety (90) daysbefore the expiry of the licence) and irrespective of the validity periodindicated on the competency certificate.

    4.6 The question may arise on howcases should be dealt with where the person applies for the renewal of acompetency certificate and a licence in a shorter period than the ninety (90)
    days required by the Act. The view is held that the application must beprocessed in the normal manner. Should the application, however, not befinalised before the expiry of the Licence, then the licence will expire as theAct provides in section ??? that if an application for the renewal of a firearmlicence has been lodged within in other words at least ninety (90) days beforeexpiry of the licence, the licence remains valid until the application has beendecided. If it is therefore not possible to decide the application within theshorter period of ninety (90) days, the licence (and competency certificate)will expire and possession of the firearm upon expiry of the licence willbecome unlawful. In such case it is proposed that the Registrar deal with thematter in terms of section 28(2) to 28(6), due the applicants non-compliancewith the Act to apply at least ninety (90) days before expiry of the licence.Although non-compliance with the renewal period for the licence would not initself constitute an offence, it could lead to the lapsing of the validity ofand cancellation of the licence and the firearm having to be disposed of interms of the Act. The South African Police Service must deal with suchsituation in a reasonable manner. If it is possible to process such a lateapplication within the time period available it should be done and thefinalisation of the application should not be delayed unreasonably.

    4.7 In respect of applications forthe renewal of licences until 11 March 2011, where the ninety (90) days periodhas not been adhered to in respect of either the competency certificate or thelicence, the application must be accommodated through the use of section 28(2)to (6) of the Act in order to phase in the implementation of the Act in areasonable fashion.

    4.8 It is not an offence in the Actor amended Act not to renew a competency certificate or a licence within thestipulated period. The validity of the competency certificate is also not arequirement for lawful possession of a firearm, although the possession of acompetency certificate is a prerequisite for the issuing of a firearms licence.No prosecution can therefore be instituted for not renewing a competency certificatewithin the prescribed period or at all. A valid licence is, however, requiredfor lawful possession and a person may be prosecuted for being in possession ofa firearm without being in possession of a valid licence. The non-compliancewith the renewal period may eventually affect the validity of the competencycertificate and a licence cannot be issued or renewed without the relevantperson being in possession of a competency certificate. In such cases, asindicated above, the Registrar is advised to deal with the matter in terms ofsection 28(2) to 28(6) of the Act, if a licence has not been issued upon theexpiry of thereof. (Both the licences and competency certificates of personswho applied within the required period remain valid until the applications havebeen decided).

    4.9 A person who has not at allapplied for the renewal of a licence, issued in terms of Act 60 of 2000, beforethe expiry thereof will upon expiry of the licence be in unlawful possession ofthe firearm which constitutes an offence and he or she may be prosecuted forthat and the firearm seized.

    4.10
    It is realised that numerous competencycertificates have been issued to persons, but no firearms licence had beenissued to the person. In such case there is technically no expiry date for thecompetency certificate. In view of the fact that no licence is granted for aperiod exceeding 10 years, a competency certificate issued without the issuingof a Licence can only be accepted for a period not exceeding 10 years from thedate of issuing of the competency certificate. After 10 January 2011, any competencycertificate should be printed simultaneously with the licences, in respect ofwhich the competency certificate is applied for, when the licence is granted,in order to reflect the .expiry date of the licence also as the expiry date ofthe competency certificate.

    4.11 It must be noted that in viewof the Court order which followed the application against the Minister by theSA Hunters and Game Conservation Association, licences issued in terms of therepealed Arms and Ammunition Act, 1969 (Act No. 75 of 1969), remain valid untilthe Court has decided on the Constitutionality of the Act. No steps may at thisstage be taken against persons who have not renewed their licences which havebeen issued in terms of the repealed Arms and Ammunition Act, 1969, within thetime periods prescribed in terms of the Firearms Control Act, 2000. These greenlicenses” remain valid for the present.

    4.12 APPLICATION FOR RENEWAL OFCOMPETENCY CERTIFICATE IN RESPECT OF A FIREARM (SAPS 517(g)) RESPONSIBILITIESOF THE APPLICANT

    4.12.1 Applications for the renewalof a competency certificate issued in terms of the Act, must be madesimultaneously with the application to renew the licence of the firearm inquestion, irrespective of the date of validity indicated on the existingcompetency certificate (in view thereof that the Amendment Act has aligned theperiod of validity of the competency certificate with the period of validity ofthe licence in question). In respect of both applications, for renewal of acompetency certificate and a licence the Act requires that the application mustbe made at [east ninety (90) days before expiry of respectively the competencycertificate and the licence.

    412.2 The following supportingdocuments must be attached to the application form:

    4.12.2.1 Two recent (not older thanthree (3) months) colour photographs (passport size), which shall
    (i)Show a full and unobscured frontview of the applicant’s head, face and shoulders and have a neutral background(no headdress); and
    (ii) be to the dimensions of 33 mm(width) X 40mm (height).

    4.12.2.2 A certified copy of theapplicant’s competency certificate which he or she wishes to renew;

    4.12.2.3 A certified copy of proof ofthe applicant’s permanent residential address (permit for non-South Africancitizens) must be submitted by all applicants;

    4.12.2.4 A declaration under oath orsolemn statement by the applicant in th’ prescribed form confirming that he/shestill conforms to the requirements of section 9(2) of the Act. Note that theprescribed statement is integrated into form SAPS 517(g). Also note that theapplicant need not comply again with the provisions of section 9(2) (q) or (r)of the Act, in other words he or she need not again complete the prescribedtest on knowledge of the Act, or the practical test regarding the efficienthandling of the firearm, unless the Registrar in a specific case and on goodgrounds require otherwise.

    4.12.2.5 Any other documentation submittedby the applicant in support of the application;

    4.12.2.6 Proof of payment;

    4.12.2.7 A certified copy of theapplicant’s identity document;

    4.12.2.8 The application for therenewal of a competency certificate must be submitted by the applicant to theDesignated Firearms Officer responsible for the area in which the applicantordinarily resides or conduct business whichever is applicable; and

    4.12.2.9 Two written testimonialsfrom friends/colleagues or any other person who might have knowledge of theapplicant.



    GUIDELINES TO DEAL WITH APPLICATION FOR COMPETENCY CERTIFICATES AND RENEWALOF COMPETENCY CERTIFICATES

    5. The Designated Firearms Officermust confirm the physical address indicated on the application form todetermine whether the applicant resides at the given address.

    6. The Designated Firearms Officermust after submission of an application for a competency certificate or arenewal of a competency certificate conduct a background evaluation of theapplicant.

    7. A minimum of two interviews mustbe conducted. Both interviews may be conducted telephonically or one in personand the other by telephone. At least one interview must be conducted with thespouse or partner, of the applicant In the case of unavailability of such spouseor partner, an adult family member must be interviewed.

    8. The Designated Firearms Officermust forward the completed form (SAPS 517) or 517(g) whichever is applicable,together with his or her written recommendation, to the Provincial Office:
    Firearms, Liquor and Second-Hand Goods Control who must also forward the sameto the Head: Firearms, Liquor and Second-Hand Goods Control for furtherprocessing.

    9. All fully completed applicationsmust be finalised within a period of thirty(30) calendar days at stationlevel/Designated Firearms Officer level and must be forwarded to the ProvincialOffice.

    VALIDITY PERIOD OF LICENCES

    10. The third important amendment ofthe Act relates to the validity period of two types of licences, namely alicence to possess a firearm for business purposes: Business as game rancherand in hunting (section 20 of the Act) from five (5) to ten (10) years and topossess a firearm for business purposes: Business other than as game rancherand in hunting (section 20 of the Act) from two (2) years to five (5) years.Irrespective of the dates printed on the relevant licence, all such licenceswhich have not yet expired by 10 January 2011 will automatically remain validfor the new period of validity, calculated from the date of issuing of thelicence.

    RESPONSIBILITY OF THE PROVINCIAL OFFICE: FLASH

    11. All fully completed applications must be finalised within a periodof fourteen (14) calendar days at the Provincial Office and must be forwardedto the National Office.

    RESPONSIBILITY OF THE NATIONAL OFFICE: FLASH

    12. All fully completed applications must be finalised within a period of four (4) months by the National Office.

    LEGAL QUESTIONS

    13. It is realised that the implementation of the Amendment Act may raise various questions of a legal nature, and where such legal issues arise, an opinion must be requested for the
    Executive Legal Officer through the Head of the Component Firearms, Liquor andSecond-Hand Goods Control ensure uniformity and a correct implementation of theAct. In the case of general enquiries arid if information is required, ColonelMahiabane may be contacted at (012) 353 6034 or 082 778 9240.

    14. These guidelines must be adheredto in the implementation of the Amendment Act.



    NATIONAL COMMISSIONER OF THE SOUTH AFRICAN POLICE SERVICE
    Date: 2011 -01-07
    "Guns are just tools, the way they're used reflects the society they're apart of, if you don't like guns, blame it on society" ~Chris Kyle

  2. #2
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    Default Re: LEGAL CONSEQUENCES

    Good info thanks.

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    Default Re: Legal consequences of the FCA amendment Act

    Quote Originally Posted by FrankH View Post
    RESPONSIBILITY OF THE PROVINCIAL OFFICE: FLASH

    11. All fully completed applications must be finalised within a period of fourteen (14) calendar days at the Provincial Office and must be forwarded to the National Office.

    RESPONSIBILITY OF THE NATIONAL OFFICE: FLASH

    12. All fully completed applications must be finalised within a period of four (4) months by the National Office.
    Are these time limits for competency only, or for licence aplications too?
    Were there time-limits previously, and were they simply ignored?

    Maybe I'm being over optimistic, but might this improve processing time a bit?

  4. #4

    Default Re: Legal consequences of the FCA amendment Act

    Quote Originally Posted by PesVis View Post

    Maybe I'm being over optimistic, but might this improve processing time a bit?
    Who knows, but I wouldn't hold my breath.
    "Guns are just tools, the way they're used reflects the society they're apart of, if you don't like guns, blame it on society" ~Chris Kyle

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    Default Re: Legal consequences of the FCA amendment Act

    9. All fully completed applications must be finalised within a period of thirty(30) calendar days at station level/Designated Firearms Officer level and must be forwarded to the Provincial Office.
    11. All fully completed applications must be finalised within a period of fourteen (14) calendar days at the Provincial Office and must be forwarded to the National Office.
    12. All fullycompleted applications must be finalised within a period of four (4) months bythe National Office.
    This is what they SAY must happen. Going by what they have DONE thus far, does anyone believe this?

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    Default Re: Legal consequences of the FCA amendment Act

    Help me please.... If my competancy for Handgun and rifle expires in 08/2012, My SD handgun licence 03/2013 and my first DS 05/2018. When do I renew compitency?

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    Default Re: Legal consequences of the FCA amendment Act

    Quote Originally Posted by Gerard View Post
    This is what they SAY must happen. Going by what they have DONE thus far, does anyone believe this?
    but it at least gives you a good reason to light a fire under their asses.

  8. #8

    Default Re: Legal consequences of the FCA amendment Act

    Quote Originally Posted by farmer-el View Post
    Help me please.... If my competancy for Handgun and rifle expires in 08/2012, My SD handgun licence 03/2013 and my first DS 05/2018. When do I renew compitency?
    Self explanatory. "The Act now provides that a competency certificate remains valid for the period of validity of the licence in respect of which it has been issued."
    "Guns are just tools, the way they're used reflects the society they're apart of, if you don't like guns, blame it on society" ~Chris Kyle

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    Default Re: Legal consequences of the FCA amendment Act

    but it at least gives you a good reason to light a fire under their asses.
    Why must we accept talk of a six month process which, in reality will stretch to much more than that, when all that is happening is a waste of resources and time that could be spent fighting real crime?

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    Default Re: Legal consequences of the FCA amendment Act

    Quote Originally Posted by Gerard View Post
    Why must we accept talk of a six month process which, in reality will stretch to much more than that
    Hasn't the lawful firearm owners and community been asking for time limits on processing for years? Sure, five and a half months is not great but we've finally got a time limit, maximum time limits.
    Why don't we give them a chance to put these time limits into action before we decide they're not going to do it?

    Interesting that people applying for competency without applying for a FA license will not get a comp card until they successfully get a FA license. So I assume now that the moment your comp is approved, that same day you can submit a license app. They have been harping on about not being able to apply for a license until you have your comp card in your hands. Another thing that will help speed the process up a little for those still requiring their comps.

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