違反海洋污染防治法義務所得利益核算及推估辦法

These Regulations are formulated in accordance with Paragraph 4 of Article 63 of the Marine Pollution Control Act (hereinafter referred to as "this Act").

1The specialized terms used in these Regulations are defined as follows:

21. Positive Benefit: The operating profit, consideration, or remuneration gained from increased property income due to violating obligations under this Act.

32. Negative Benefit: The benefit obtained from not incurring or reducing expenditures due to violating obligations under this Act, including benefits from avoiding, delaying, or reducing expenses.

43. Beneficiary: The individual or other entity that gains benefits from violating obligations under this Act.

54. Operating Revenue: The operating revenue reported by the beneficiary during the benefit calculation period according to the Income Tax Act.

65. Operating Profit: The profit obtained from operating revenue after deducting business costs, management, and administrative expenses.

76. Net Profit Margin: The ratio obtained by dividing the operating profit by the operating revenue. If it is difficult or impossible to obtain the amount of operating profit, the competent authority may use the income standard of each industry according to the Tax and Standard Industrial Classification and Industry Profit Standard of the Ministry of Finance. If the required data is not provided within the deadline or is deemed incomplete by the competent authority, the net profit margin of the relevant industry profit standard may be used. If the income standard or industry profit standard for that year has not been announced, the standard of the previous year will apply.

87. Illegal Discharge or Treatment Quantity: The total amount of wastewater or sewage, oil, waste, hazardous substances, or other pollutants discharged, dumped at sea, or incinerated at sea due to violating obligations under this Act during the benefit calculation period.

98. Total Discharge or Treatment Quantity: The total amount of wastewater or sewage, oil, waste, hazardous substances, or other pollutants discharged, dumped at sea, or incinerated at sea during the benefit calculation period.

1For discharging or dumping wastewater or sewage, oil, waste, hazardous substances, or other pollutants into the sea or conducting other activities likely to cause marine pollution, which violates obligations under this Act and results in gained benefits, the competent authority may demand the beneficiary to return these benefits in accordance with Article 63 of this Act.

2If the competent authority identifies any of the following behaviors, it shall take note of the benefits obtained from violating obligations under this Act and proceed with the demand for returning of benefits:

31. Violation of the pollution control measures announced under Paragraph 2 of Article 8 of this Act, or violation of the restrictions on sea area usage announced under the latter part of Paragraph 1 of Article 9 of this Act.

42. Violation of Paragraph 1 of Article 15 of this Act by engaging in oil transport, marine engineering, marine dumping, or other activities likely to cause marine pollution without permission, or failure to execute according to the approved contingency plan.

53. Violation of the methods or procedures for marine pollution cleanup and treatment as specified in the Marine Pollution Cleanup and Disposal Regulations.

64. Violation of Paragraph 1 of Article 18 of this Act by discharging wastewater or sewage into specified areas adjacent to sea areas without permission, or violation of the permit content changes, facility shutdowns, record creation, or filing regulations concerning land-based pollution source wastewater or sewage discharges into specific sea areas.

1Positive benefits are classified into the following two categories:

21. Operating profit, consideration, or remuneration generated during the period of conduct that violates the obligations under this Act, which are related to the violation.

32. Economic benefits such as property income, remuneration, or consideration received by others who have contractual or other legal relationships with the violator, directly due to the conduct violating the obligations under this Act.

1If the generation of positive benefits is related to the quantity of discharge or treatment, it can be calculated by the following methods, and the average value can be used for determination:

21. Positive benefit = Operating Revenue (NT$) × Illegal Discharge or Treatment Quantity / Total Discharge or Treatment Quantity.

32. Positive benefit = Operating revenue (NT$) × Net Profit Margin × Illegal Discharge or Treatment Quantity / Total Discharge or Treatment Quantity.

4If the generation of positive benefits is not related to the quantity of discharge or treatment, the economic benefits can be estimated based on the contractual content between others and the violator or other supporting evidence.

1Negative benefits are classified into the following three categories:

21. Cost of capital investment expenditures: All expenditures invested in the necessary capital equipment for the compliance with the obligations under this Act, such as the design, installation, and purchase costs of pollution prevention (control) and treatment equipment (facilities), monitoring (testing) equipment (facilities), and inspection equipment (facilities).

32. Cost of one-time expenditures: One-time and non-depreciable expenditures such as initial training for employees, emergency response measures, application fees for permits required under this Act, or the cost of other related one-time expenditures recognized by the competent authority.

43. Cost of recurring expenditures: Expenditures for the operation, maintenance, and management of relevant equipment (facilities) which are necessary for the compliance with the obligations under this Act, such as costs for maintaining the normal operation of pollution prevention and control and treatment equipment (facilities), monitoring (testing) and reporting, handling waste oil, wastewater, sewage, or waste, including electricity, fuel, chemicals, materials, waste oil, wastewater, sewage, or waste treatment costs, update or improvement costs for equipment (facilities), personnel costs, travel expenses, monitoring (tesing) costs, various government fees, or other related recurring expenditure costs recognized by the competent authority.

1The calculation of the capital investment expenditure costs specified in Subparagraph 1 of the previous article can be based on the total cost of the equipment (facilities), depreciated according to the Ministry of Finance's specified durable years of fixed assets under the Income Tax Act, or amortized according to the design service life of the equipment (facilities).

2The calculation of the one-time expenditure costs specified in Subparagraph 2 of the previous article shall be based on the cost of total related expenditure.

3If the violator has improved or corrected the expenditures should be paid by the violator, then the calculation of negative benefits in the previous two paragraphs shall only account for the interest income obtained due to the delayed expenditure.

4For recurring expenditure costs specified in Subparagraph 3 of the previous article that are related to the quantity of discharge or treatment, the calculation can be based on the quantity of illegal discharge or treatment, with the following formula:

5Recurring Expenditure Cost (NT$) = Illegal Discharge or Treatment Quantity × Unit Discharge or Treatment Quantity Treatment Cost + Other Annual Expenditure

6The unit discharge or treatment quantity treatment cost mentioned in the preceding paragraph refers to the costs of electricity, water, fuel, chemicals, materials, and waste treatment per unit of discharge or treatment quantity; other annual expenditure refers to annual costs for equipment updates or improvements, personnel, monitoring and reporting, continuous automatic monitoring facility operation and maintenance, etc.

1The data and sources referenced for calculating positive and negative benefits under these Regulations are as follows:

21. Permits, reports, monitoring (testing), and verification data that comply with the regulations of the central competent authority or the industry competent authority.

32. Verification results by the competent authority or purchase, production, sales, inventory vouchers, accounts, reports, remuneration, and other relevant production, sales, operation, or import/export data provided by those with positive benefits, verified by the competent authority.

43. Relevant data provided by those with negative benefits, such as various actual operation cost invoices, verified by the competent authority.

54. Tax and Standard Industrial Classification and Industry Profit Standard of the Ministry of Finance.

65. Related industry standards announced by the central competent authority or industry competent authority.

76. Related government publications on pollution prevention (control), clean production, port pollution management, ship pollution prevention and control.

87. Relevant data from the International Convention for the Prevention of Pollution from Ships (MARPOL).

1The start date for the benefit calculation period shall be the date on which the violation of this Act is determined. The stop date shall be determined as follows:

21. For those ordered by the competent authority to take necessary emergency measures, preventive (controlling) measures, or improvements within a specified period, the stop date shall be the date on which these measures or improvements are taken.

32. For those ordered to cease constructions (operations) by the competent authority or the industry competent authority, the stop date shall be the date on which the constructions (operations) cease.

43. For those who voluntarily report cessation of constructions (operations) and business closure, verified by the competent authority, the stop date shall be the date of the reported cessation and closure.

5If the competent authority verifies that the necessary emergency measures, preventive (controlling) measures, improvements, or cessation of construction (operations) have not been taken as required, the benefits shall be recalculated for the period from the initially determined stop date to the date on which the competent authority verifies the actual implementation of these measures, improvements, or cessation.

6The deadline for the demand for returning of benefits shall be governed by Paragraph 1 of Article 131 of the Administrative Procedure Act.

1The competent authority shall calculate the total benefits by separately calculating positive and negative benefits and then summing them up. In cases of overlapping cost items, only the ones with larger benefits shall be calculated.

2The result of calculation in accordance with the preceding paragraph shall be returned with interest calculated daily based on the postal savings fixed deposit interest rate for one-year deposits as of January 1st of each year in which the benefits were generated.

3The total benefits shall be rounded to the nearest whole New Taiwan Dollar, disregarding any fractional amounts.

1A beneficiary shall submit relevant data on the benefits within the period specified by the competent authority for the calculation and estimation of benefits obtained from violating the obligations under this Act.

2For the verification mentioned in the previous paragraph, the competent authority may, when necessary, request assistance from tax collection agencies, the Financial Supervisory Commission, power supply organizations, water supply agencies (organizations), or other relevant competent authorities (organizations), enterprises, or groups.

The competent authority may entrust professional organizations to execute the calculation or estimation of benefits. If necessary, experts and scholars may be invited to assist.

1Under the premise of not harming the public interest, the competent authority may conduct consultations with a beneficiary regarding the calculation and estimation of benefits in the following circumstances:

21. The verification data on which the competent authority's calculation and estimation of benefits are based can be relatively determined through inquisitorial investigations.

32. There is a dispute between the beneficiary and the competent authority regarding the recognition of benefits.

43. The beneficiary has incurred business losses due to fines, penalties, or administrative sanctions, reducing this actual benefits.

54. The beneficiary has undertaken remediation for environmental pollution or damage caused by violating the obligations under this Act.

6When conducting consultations with the competent authority according to the previous paragraph, the beneficiary shall submit profit-seeking enterprise income tax returns, audit reports certified by CPAs, self-prepared financial statements for newly established companies in the current year, documents for non-operating losses, remediation plans for environmental pollution, or other supporting evidence.

1During the consultations with the beneficiary, the competent authority shall review the authenticity and accuracy of the supporting evidence provided by the beneficiary, consider the costs required to confirm the benefits, and evaluate the conditions and content of the consultations. If necessary, meetings may be convened with the participation of experts and scholars.

2The consultation results shall be recorded. The competent authority may consider the consultation results when making administrative decisions for the demand for returning of benefits.

These Regulations shall take effect on the date of promulgation.