regulation.” 73 What aspects of prediction markets are relevant to the Commission’s consideration of the public interest to be protected by the antitrust laws as it determines whether to adopt or amend any regulations with respect to prediction markets? It may be appropriate to consider the scope of the relevant market in this regard; in that case, what factors should the Commission take into account? Also, it may be appropriate for the Commission to “endeavor to take the least anticompetitive means,” as contemplated by CEA section 15(b), with respect to prediction markets; in that case, what factors should the Commission take into account? 40. As noted above, the Commission has received recent applications for DCM registration from entities that have indicated that they are interested primarily, or exclusively, in operating prediction markets. While registered entities are not considered small entities by the Commission for Regulatory Flexibility Act (RFA) purposes, 74 the Commission is nevertheless seeking information on how any potential rule changes for prediction markets would impact “small entities” as defined by the RFA. 75 What 73 7 U.S.C. 19(b). 74 The Commission previously determined that DCMs are not small entities in accordance with the RFA. See Policy Statement and Establishment of Definitions of “Small Entities” for Purposes of the Regulatory Flexibility Act, 47 FR 18618 (Apr. 30, 1982). Similarly, the Commission previously determined that SEFs are not small entities for purposes of the RFA. See Core Principles and Other Requirements for SEFs, 78 FR 33476, 33548 (June 4, 2013). 75 5 U.S.C. 601 et seq. The RFA provides that the term “small entity” has the same meaning as “small business”, ‘‘small organization’’ and ‘‘small governmental jurisdiction’’ defined in paragraphs (3), (4) and (5) of section 601. “Small business,” in turn, is defined as having the same meaning of “small business concern” set forth in section 3 of the Small Business Act (SBA). 5 U.S.C. 601(6). The RFA permits an agency to establish its own definition of small entity; otherwise, size standards set forth by the SBA apply. A size standard, which is usually stated in number of employees or average annual receipts, represents the largest size that a business (including its subsidiaries and affiliates) may be to remain classified as a small business for SBA and federal contracting programs. The definition of “small” varies by industry. The SBA provides that the small business size threshold for securities and commodity exchanges is $47 million in average annual receipts. See SBA’s 2022 Table of Size Standards, classifying securities and commodity exchanges under the North American Industry Classification System (NAICS), code 523210, Sector 52- Finance and Insurance, Subsector 523-Securities, Commodity Contracts, and Other Financial Investments and Related Activities, available at https://www.sba.gov/document/support-table-size-standards .
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