On April 22, 2022, the Measures for the Administration of Invasive Alien Species was reviewed and adopted at the 4th executive meeting of the Ministry of Agriculture and Rural Affairs, and was published with the consent of the Ministry of Natural Resources, the Ministry of Ecology and Environment, and the General Administration of Customs. It came into effect on August 1, 2022.

The Measures for the Administration of Invasive Alien Species provides detailed regulations on the classification of alien species and invasive alien species: For the purposes of these measures, an alien species refers to a species that has no natural distribution within the territory of the People's Republic of China and has been introduced through natural or human - made means, including all parts of the species that may survive and reproduce. An invasive alien species, as referred to in these measures, refers to an alien species that has been introduced and established, and poses a threat or harm to the ecosystem, habitat, and species, affects China's ecological environment, and undermines the sustainable development of agriculture, forestry, animal husbandry, and fishery, as well as biodiversity.

Here, the Judicial Office of Changfeng New Village invites lawyers from Shanghai Runyi Law Firm to lead everyone to further understand this management measure through the recently popular social event of the "alligator gar".

[Hot Event] Draining the Lake to Catch the "Strange Fish"

At the end of August 2022, a strange fish called the "alligator gar" suddenly caught people's attention. This giant strange fish has been spotted in many provinces such as Guangdong, Guangxi, Fujian, Henan, Sichuan, and Jiangsu. In Ruzhou Central Park, Henan, professional personnel drained 300,000 cubic meters of water from Yunchan Lake to catch two alligator gars, and tens of millions of netizens watched the capture process through live - streaming. What is so special about these two "alligator gars" that it is worth such a big effort?

[Species Science Popularization] Understanding the Alligator Gar

Alligator gar (scientific name: Atractosteus spatula): It is an animal of the order Lepisosteiformes, family Lepisosteidae, and genus Atractosteus. Gar species are native to North America or Central America, and their ancestors can be traced back to more than 100 million years ago in the Cretaceous period. The body length of adult alligator gars is generally 1.2 to 1.8 meters, and the longest can reach 3 meters. It is the largest species among the 7 existing gar species.

During the long - term evolutionary process, the scales of the alligator gar have become as thick as a coin. This layer of hard scales covered with enamel would even make a kitchen knife "shrug". The eggs and meat of the alligator gar also contain a special toxic protein, which protects the alligator gar from being preyed upon. As a carnivorous fish, the alligator gar eats almost everything. At the same time, the alligator gar has extremely strong adaptability. Its swim bladder is connected to the back of the esophagus by a swim - bladder tube. The swim bladder is multi - chambered, shaped like a lung, and its walls are densely covered with micro - blood vessels. It can even survive on land for a period of time.

The combination of the above characteristics has jointly made the alligator gar the top predator in the water environment. Without the restraint of natural enemies, the alligator gar can do whatever it wants in China's water environment.

Mr. Kong, a staff member of the Henan Water Resources Investment Group who participated in the fishing operation in Ruzhou Central Park, said that during the search process, they found that most of the fish in the lake had been eaten. If left unchecked, the alligator gar might even take risks and attack humans near the water area after running out of food. A boy in Taizhou, Jiangsu was accidentally bitten on three fingers by an alligator gar while playing in the community landscape pond. Such a highly harmful species deserves attention and vigilance.

[Event Warning] The Dangers of Alien Species

The meat and eggs of the alligator gar are poisonous, so it is not suitable for consumption. However, the strange appearance and ferocious habits of the alligator gar have won it a place in the ornamental fish market. Around the 1990s, the alligator gar was introduced as an ornamental fish and gradually became a regular in the domestic ornamental fish market. However, the alligator gar eats too much, and coupled with its large size commensurate with its food intake, many owners find it too expensive to raise and choose to "release" it into the wild. The already powerful alligator gar becomes even more lawless after escaping from the fish tank and wantonly preys on local aquatic organisms.

Events of harm caused by alien species similar to the alligator gar are not uncommon. In recent years, the number of alien species invasions in China has been on the rise, and China has become one of the countries most severely affected by such harm in the world. At the beginning of the 20th century, China introduced water hyacinths from South America as ornamental plants and feed. However, due to the lack of relevant prevention and control mechanisms, water hyacinths multiplied in large numbers, causing the death of aquatic organisms due to lack of oxygen. "Solidago canadensis" is an ornamental plant introduced from North America in the 1930s in Shanghai and other places in China. After being released into the wild, it has extremely strong reproductive ability and the ability to quickly occupy space, suppressing the growth of local plants and destroying the vegetation ecological balance in the invaded area. These are all typical cases of invasive alien species.

These events have made people aware of the dangers of alien species and have led to the formulation of corresponding laws and regulations to prevent and control these organisms. Since 2003, China has successively released 4 batches of the List of Invasive Alien Species in China. In addition to water hyacinths and Solidago canadensis, organisms such as apple snails, bullfrogs, and red swamp crayfish are also on the list.

[Legal Interpretation]

From Post - event Remediation to Pre - event Prevention, the Measures for the Administration of Invasive Alien Species Strengthens the Biosecurity Defense Line

On August 31, 2022, Gu Dang'en, a scientist in the prevention and control of alien species invasion at the National Technology System for Freshwater Fish Industry, pointed out that "when the List of Key State - Managed Alien Species (the First Batch) was released and implemented in 2012, there was no evidence to prove that alligator gars could reproduce in the wild, and the number was relatively small at that time. However, current data have proven that alligator gars can reproduce in the wild. The customs and the agricultural and rural departments have already started to take action to prevent the introduction of these species." Therefore, the alligator gar is currently only an alien species and does not belong to the 'invasive alien species' stipulated by Chinese law. The control over it is not as strict as that over other invasive alien species. In fact, people could even directly buy alligator gars online not long ago. However, the harm caused by the introduction of alligator gars actually exists. For alien species like the alligator gar, can we only defend passively and even pay the price of draining the water body to capture it, or is there a way to ring the alarm in advance?

To effectively strengthen the management of invasive alien species, the Measures for the Administration of Invasive Alien Species also makes provisions in three aspects: source prevention, monitoring and early warning of invasive alien species, and implementation of governance and restoration.

1. Source Prevention

Articles 10 to 14 of the Measures for the Administration of Invasive Alien Species put forward clear requirements for strengthening source prevention from three aspects.

First, standardize the management of species introduction. For the introduction of alien species such as crop and forestry and grass seeds and seedlings, and aquatic fry from overseas for special needs such as variety cultivation, import approval and quarantine approval shall be handled in accordance with the approval authority. For the first - time introduction, the introducing unit shall conduct a risk analysis and submit a risk assessment report to the approval department.

Second, strengthen port prevention and control. Customs authorities shall strengthen port prevention and control, crack down on illegal acts such as illegal introduction, carrying, mailing, and smuggling of alien species, and dispose of the discovered alien invasive species and alien species with invasion risks upon assessment in accordance with the law.

Third, strengthen domestic quarantine. The competent agricultural and rural, forestry and grassland departments of local people's governments at or above the county level shall strengthen quarantine supervision over the cross - regional transportation of crop seeds, forest and grass seedlings, plant products, aquatic fry and other items within the territory in accordance with the law to prevent the spread of alien invasive species.

The invasion routes of alien species mainly include human - induced introduction and natural invasion. Human - induced introduction includes intentional introduction and unintentional introduction. Among them, intentional introduction includes introduction for purposes such as ornamental use, while unintentional introduction refers to the unintentional introduction along with trade transportation and by passengers. Natural invasion refers to the invasion through air flow, water flow, or the transfer by insects and birds. The three requirements put forward by the Measures for the Administration of Alien Invasive Species for source prevention correspond to intentional introduction, unintentional introduction, and natural invasion respectively, comprehensively blocking the invasion of alien species into China.

2Monitoring and early warning

To strengthen the monitoring and early warning of alien invasive species and timely grasp the situation of alien invasive species, Articles 15 to 19 of the Measures for the Administration of Alien Invasive Species make provisions in three aspects.

First, conduct surveys and monitoring. Establish a census and monitoring system for alien invasive species, organize a national census once every ten years, build a national monitoring network for alien invasive species, and conduct regular monitoring.

Second, issue early warnings and forecasts. The competent agricultural and rural, natural resources (ocean), ecological environment, forestry and grassland departments of local people's governments at or above the provincial level and customs authorities shall strengthen the sharing of monitoring information, analyze and judge the occurrence and spread trends of alien invasive species, issue early warnings and forecasts in a timely manner, and guide the prevention and control work.

Third, standardize information release. The overall situation of national alien invasive species shall be uniformly released by the Ministry of Agriculture and Rural Affairs in consultation with relevant departments. The occurrence situation of alien invasive species in relevant fields shall be released by relevant departments of the State Council in accordance with their respective duties and authorities. The competent agricultural and rural departments at the provincial level shall uniformly release the situation of alien invasive species in their respective administrative regions in consultation with relevant departments.

Before the introduction of the Measures for the Administration of Alien Invasive Species, there were certain gaps in the real - time monitoring of alien invasive species in China. By the time people noticed the harm caused by alien invasive species, these species often had already accumulated a certain quantity. At this time, carrying out governance often faces problems such as high cost and difficulty in eradication. The Measures for the Administration of Alien Invasive Species make provisions for the whole process from investigation and monitoring, early warning release to information release. With the entry into force of the Measures for the Administration of Alien Invasive Species, China has launched a census of alien invasive species, thus nipping the problem of species invasion in the bud and achieving the goal of "treating invasive species early, treating them small, treating them thoroughly, and treating them well".

3Implementation of governance and restoration

To effectively promote the governance and restoration of alien invasive species, Articles 20 to 23 of the Measures for the Administration of Alien Invasive Species stipulate that the Ministry of Agriculture and Rural Affairs, the Ministry of Natural Resources, the Ministry of Ecology and Environment, and the National Forestry and Grassland Administration shall, in accordance with their respective duties, study and formulate prevention and control strategies and measures for alien invasive species. Local areas shall formulate prevention and control and governance plans based on actual conditions and implement prevention and control measures.

For the governance of alien invasive plants, measures such as manual uprooting, mechanical removal, spraying of green pesticides, and releasing of biological natural enemies can be taken according to the actual situation during the key growth periods such as the seedling stage, flowering stage, or fruiting stage.

For the governance of alien invasive pests and diseases, measures such as selecting disease - and pest - resistant varieties, pre - treatment of seedlings, physical removal, chemical eradication, and biological control shall be taken to effectively prevent the spread of pests and diseases.

For the governance of alien invasive aquatic animals, targeted fishing and other measures shall be taken to prevent their further spread and harm. In addition, the Measures for the Administration of Alien Invasive Species require that measures such as planting native plants and releasing native species be taken according to local conditions to restore the ecological system in areas where alien invasive species occur.

[Lawyer's reminder]

Although "alien invasive species" and "alien species" are two different concepts. Not all alien species are invasive species, and whether a species is an invasive species requires long - term scientific assessment. However, as long as it is an alien species, regardless of whether it is included in the list, there are strict management regulations. According to the relevant provisions of the Measures for the Administration of Alien Invasive Species and the Biosecurity Law, no unit or individual may, without approval, introduce, release, or discard alien species without authorization; if it constitutes a violation, in addition to capturing or retrieving the alien species within a time limit, it also needs to bear a fine of 10,000 to 50,000 yuan. In addition, the Eleventh Amendment to the Criminal Law added the crime of illegal introduction, release, or discard of alien invasive species. Those who violate national regulations and illegally introduce, release, or discard alien invasive species shall be investigated for corresponding criminal liability.

Currently, some ornamental fish merchants, in order to increase the sales volume of alligator gars, claim to customers that the purchase of this species is not illegal, as long as it is not released privately, there will be no problem. However, this statement that "buying and selling is legal, but releasing is illegal" lacks legal basis. Although current relevant regulations do not explicitly prohibit the trading of alien species, without the ability to provide introduction permits or other legal certificates, the trading of alien species is very likely to be recognized as an act of introducing alien species, and the owners and sellers are likely to bear corresponding legal responsibilities.

In summary, when residents see "rare and exotic animals" in the flower and bird market, if they are not sure whether they are alien species, they should avoid buying them to avoid bearing corresponding legal responsibilities. At the same time, if residents have already bought alien species such as alligator gars and can no longer keep them, they must not release them casually. They can entrust universities, scientific research institutions, or the Shanghai Municipal Agriculture and Rural Affairs Commission to handle them. If residents find alligator gars in parks, rivers, lakes, or other water areas, they should report to the Shanghai Municipal Agriculture and Rural Affairs Commission or other competent departments as soon as possible for fishing and removal, and conduct harmless treatment. For "exotic pets" of unknown origin, it is hoped that residents will fully understand, improve their awareness, and be cautious. Do not introduce or discard alien species without authorization, and jointly protect the ecological environment in this area.

Appendix: Information of Shanghai Agriculture and Rural Affairs Commission

Contact Phone:23111111

Address:No. 100, Dagu Road, Shanghai

Working Hours: 9:00—18:00

【Summary of Relevant Legal Provisions】

Article 344-1 of the Criminal Law of the People's Republic of China:

Whoever, in violation of state regulations, illegally introduces, releases or discards alien invasive species, if the circumstances are serious, shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention, and shall also, or shall only, be fined.

Article 25 of the Measures for the Administration of Alien Invasive Species:

Whoever, in violation of the provisions of these Measures, introduces, releases or discards alien species without approval shall be punished in accordance with Article 81 of the Biosecurity Law of the People's Republic of China. If the case is suspected of a crime, it shall be transferred to the judicial organ in accordance with the law for criminal liability.

Biosecurity Law of the People's Republic of China

Article 81: Whoever, in violation of the provisions of this Law, introduces alien species without approval, the relevant departments of the people's governments at or above the county level shall, in accordance with their respective functions and duties, confiscate the introduced alien species and impose a fine of not less than 50,000 yuan but not more than 250,000 yuan.

Whoever, in violation of the provisions of this Law, releases or discards alien species without approval, the relevant departments of the people's governments at or above the county level shall, in accordance with their respective functions and duties, order the person to capture or retrieve the released or discarded alien species within a time limit and impose a fine of not less than 10,000 yuan but not more than 50,000 yuan.

Article 82: Whoever, in violation of the provisions of this Law, commits a crime, shall be investigated for criminal liability in accordance with the law; if any personal, property or other damage is caused, civil liability shall be borne in accordance with the law.

Shanghai Runyi Law Firm

Lawyer Ouyang ChenpengTrainee Lawyer Wu RenjieContribution