1

Public Comments on ASTM E2329-17

Standard Practice for Identification of Seized Drugs

Submitted on Behalf of 

David Banks, Georgiy Bobashev, Alicia Carriquiry, John Ellis, 

Jennifer Friedman, Hariharan Iyer, Mark E. Johnson, David Kaye, 

Karen Kafadar, Steven Lund, Cedric Neumann, Andrea Roth, 

Barry Scheck, Hal Stern, Clifford Spiegelman, and Sandy Zabell

January 6, 2018

Although ASTM E2329−17 is an improvement over E2329−14, we do not believe it should be 

placed on the OSAC Registry of Approved Standards for the following two reasons: 

(1) Section 4.2 incorporates “Practice E2764” to explain the statement that “It is expected 

that in the absence of unforeseen error, an appropriate analytical scheme effectively 

results in reliable and scientifically supported identifications.” The current version of 

ASTM E2764 states: “4.3.1 It is expected that in the absence of unforeseen error, an 

appropriate analytical scheme effectively results in no uncertainty in reported 

identifications.” Citing to this text allows analysts to assert that there is “no uncertainty” 

in their identifications (unless they committed an unknown, unforeseen error).

(2) Section 6.1.8 states that “[t]he chosen analytical scheme shall demonstrate the identity of 

the specific drug(s) present and shall minimize false positive and false negative 

identification.” No analytical scheme can simultaneously minimize both the false-positive 

and the false-negative conditional error probabilities. The best that can be done is to 

adopt a scheme that achieves a scientifically and legally acceptable trade-off of error 

probabilities. 

An elaboration on these two comments and related issues follows. The full set of comments is 

intended (a) to assist the subcommittee in deciding whether the current wording is adequate to 

enable the FSSB to place E2329–17 on the Registry; (b) to contribute to further improvements in

this standard and the connected one; and (c) to offer information to the FSSB if it is called on to 

place this standard on the Registry. The more complete statement explains the basis for the two 

conclusions stated above and gives specific suggestions for corrections and improvements.

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1 The explanatory document has the support of all the individuals named above. Page 1 was added for clarification at 

the end of the public comment period. David Banks, Georgiy Bobashev, Alicia Carriquiry, John Ellis, Jennifer 

Friedman, Karen Kafadar, David Kaye, Steven Lund, Cedric Neumann, Hal Stern, and Sandy Zabell expressed their 

agreement with it. No commenter expressed any disagreement with it.
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Introduction

As is well known, NIST disavowed the part of ASTM E2329–14 that read:

It is expected that in the absence of unforeseen error, an appropriate analytical 

scheme effectively results in no uncertainty in reported identifications (see 

Practice E2764).

A joint statement from NIST and the Forensic Science Standards Board explained that

The FSSB and NIST agree that the term "effectively results in no uncertainty" 

means different things to different readers of the document. While this language 

was deemed appropriate by its authors, it was deemed inappropriate by others 

including NIST.2

The FSSB, NIST, and ASTM, Inc., promised “to work together on new language that conveys 

clear meaning.”3 The new language appears in ASTM E2329-17, which is being considered as a 

replacement for ASTM E2329-14 on the OSAC Registry of Approved Standards. Unfortunately, 

the ASTM revision process does not seem to have reached the goal of a clear and scientifically 

acceptable meaning for this standard.

The revised Standard Practice for Identification of Seized Drugs (ASTM E2329-17) contains two 

major improvements.4 They are shown in Table 1.

Table 1

Old and New Text of Sections 4.2 and 6.1.8

Section 2014 Standard 2017 Standard

4.2 Correct identification of a drug or 

chemical depends on the use of an 

analytical scheme based on 

validated methods (see Practice 

E2549) and the competence of the 

analyst. It is expected that in the 

absence of unforeseen error, an 

appropriate analytical scheme 

effectively results in no 

uncertainty in reported 

identifications (see Practice 

E2764).

Correct identification of a drug or 

chemical depends on the competence of 

the analyst and the use of an analytical 

scheme that incorporates validated 

methods (see Practice E2549). It is 

expected that in the absence of 

unforeseen error, an appropriate 

analytical scheme effectively results in 

reliable and scientifically supported 

identifications 5/ (see Practice E2764).

5. Milman, B. L., Chemical 

Identification and Its Quality 

Assurance, Springer-Verlag, 2011

 

2

Joint OSAC FSSB and NIST Statement on ASTM E2329-14, July 05, 2016, https://www.nist.gov/newsevents/news/2016/07/joint-osac-fssb-and-nist-statement-astm-e2329-14.

3

Id.

4 Other parts of the standard which have not changed obviously raise the same problems noted in comments of the 

HFC and LRC members on ASTM E2329-14.
3

6.1.8 The chosen analytical scheme 

shall demonstrate the identity of 

the specific drug present and shall 

preclude a false positive 

identification and minimize false 

negatives. Where a scheme has 

limitations, this shall be reflected 

in the final interpretation (see 

Practice E2764).

The chosen analytical scheme shall 

demonstrate the identity of the specific 

drug(s) present and shall minimize 

false positive and false negative 

identification. Where a scheme has 

limitations, this shall be reflected in the 

reported result (see Practice E2764).

Comments on Section 4.2

The first sentence of Section 4.2 is incomplete. Correct identification (in a particular case) also 

depends on whether a competent examiner using validated methods applied these methods 

properly. The Federal Rules of Evidence and those of many states require a showing that 

validated methods have been applied properly in a particular case.

The second sentence uses the phrase “effectively . . . reliable and scientifically supported 

identifications.” In the statistical literature, a reliable measurement system is one that produces 

fairly consistent measurements.5In the broader scientific literature, “reliable” also can mean 

trustworthy, as it usually does in the legal system. The standard probably is referring to 

reliability in the broad sense of something that can be relied on to be correct. Inasmuch as neither 

ASTM E2329-17 nor the SWGDRUG glossary to which it points defines reliability, however, 

arriving at this conclusion takes some effort.6 Further ambiguity results from the phrase 

“unforeseen error.” Identifications made pursuant to an analytical scheme that “incorporates 

validated methods” are, by definition, both statistically reliable and scientifically supported. 

Thus, readers are left to wonder whether “unforeseen error” refers to an analyst’s failing to 

follow the validated method, to making a clerical error (both of which are foreseeable), or to 

something else. If that is the point of the clause, words like “blunder,” “misapplication,” or 

“malfeasance” would achieve greater clarity.7

One could view these ambiguities as more or less harmless, but the additional reference to 

“Practice E2764” reinstates the original, unacceptable language of “no uncertainty.” Section 

4.3.1 of ASTM E2764-11 is identical to the sentence in ASTM E2329-14 that the new version is 

 

5

In analytical chemistry and engineering, the terms “repeatable” and “reproducible” are commonly used to indicate 

two types of reliability. E.g., Barry N. Taylor & Chris E. Kuyatt, NIST Technical Note 1297: Guidelines for 

Evaluating and Expressing the Uncertainty of NIST Measurement Results (1994), available at 

https://www.nist.gov/pml/nist-technical-note-1297. But see Nat’l Acad. of Sci., Engineering & Med., Statistical 

Challenges in Assessing and Fostering the Reproducibility of Scientific Results: Summary of a Workshop (2016) 

(discussing the variety of definitions of the terms “reproducibility” and “replicability” found in different scientific 

fields).

6 Because statistical reliability is part of what makes identifications “scientifically supported,” the term would be 

superfluous if this were the intended meaning. Furthermore, the authority cited in this subsection defines “reliability 

of an identification” as the sensitivity and specificity of a binary classification. Boris L. Milman, Chemical 

Identification and Its Quality Assurance 64 (2011).

7 The phrase was the subject of criticism in both HFC and LRC comments on ASTM E2329-14. 
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supposed to have fixed. Citing ASTM E2764-11 as a reference for readers to understand ASTM 

E2329-17 therefore allows analysts to continue to assert that there is “no uncertainty” in their 

identifications (unless they committed an unknown, unforeseen error).8

Of course, well trained, conscientious, and knowledgeable analysts would not testify in this 

manner, but it would be unfortunate if OSAC were to approve—for the second time—a standard 

that could be cited as supporting such assertions. NIST’s previous statement that “no 

measurement, qualitative or quantitative, should be characterized as without the risk of error or 

uncertainty”

9 was correct.10 No standard that departs from this principle, explicitly or implicitly,

has a place on the OSAC registry.

Section 6.1.8

ASTM E2329-14 requires the laboratory to select the analytical scheme that will “preclude a 

false positive identification and minimize false negatives.” Apparently recognizing the 

impossibility of totally precluding false positives, ASTM E2329-17 requires the laboratory to 

choose the analytical scheme that will “minimize false positive and false negative identification.” 

But each scheme has to trade off reducing the risk of errors of one type for increasing the risk of 

the other type of error. There may be no analytical scheme among the alternatives that the 

standard provides that minimizes both false positive and false negative probabilities relative to 

the other schemes.

Thus, the professed requirement that laboratories adopt procedures that keep both false-positive 

and false-negative risks to their smallest possible values is not statistically defensible. We 

appreciate that the drafters of the standard may have meant to say that the laboratory must follow

procedures that reduce both types of error to acceptably small values, resulting in statistically 

reliable and valid drug identifications. Expressing that idea more precisely (or simply dropping

the sentence) would accomplish the objective of the standard and make it better suited for 

inclusion in the registry.

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8 The witness can truthfully testify that, according to ASTM E2329-17, the laboratory produced a “reliable” and 

“scientifically supported” identification, which means, as explained in the OSAC-approved reference to “ASTM 

E2764,” that there is “no uncertainty” in the finding. This problem could be solved either by revising the Standard 

Practice for Uncertainty Assessment (ASTM E2764) or by deleting the references to it. We understand that ASTM 

is revising E2749-11. Once a suitable version is made public, a reference to it could be appropriate.

9 NIST Statement on ASTM Standard E2329-14, Mar. 17, 2016, https://www.nist.gov/newsevents/news/2016/03/nist-statement-astm-standard-e2329-14.

10 The uncertainty in the findings of some laboratories, especially those that exceed the minimum provided for in 

ASTM E2329, appears to be very small. See S.E. Rodriguez-Cruz & R.S. Montreuil, Assessing the Quality and 

Reliability of the DEA Drug Identification Process, 6 Forensic Chem. 36 (2017). However, it is not zero, and it is for 

a judge or jury to decide whether the risk of error in a particular case is negligible.

11 The remaining sentence in § 6.1.8 also could be improved. Because every analytical scheme has limitations, the

sentence should simply state, without referring to ASTM E2764-11, that reported findings shall be accompanied by 

a statement of those limitations or the uncertainty in the result as determined by empirical testing. This suggestion is 

editorial; in itself, it would not preclude registry approval.
Public Comments on ASTM E2329-17

Standard Practice for Identification of Seized Drugs

Submitted by Lynn Garcia, Kent Cattani and Ron Reinstein

January 6, 2018

This is a brief response to the comments made by 16 statisticians and attorneys submitted by David 

Kaye on January 6, 2018. The group makes valid observations, including but not limited to 

suggesting that problematic language in ASTM E2329-14 be removed in any document referenced 

internally by E2329-17, such as E2764-11. The Seized Drugs subcommittee in fact agrees and is 

currently in the process of removing the problematic language from all standards in which it 

appears.

Removing the language from E2329-17 itself is an important improvement that should be 

communicated to forensic practitioners as soon as possible via publication of the standard on the 

registry. Hopefully, the subcommittee will be able to remove the problematic language from the 

standards referenced by E2329-17 before the FSSB votes on E2329-17. However, even if the 

language cannot be removed by that time, the FSSB should still include E2329-17 on the registry.

The criminal justice community is better served by including the improved standard than delaying 

its approval to wait for similar edits to take effect in other referenced documents. The additional

comments raised by the group should be addressed by the subcommittee in the next version of 

E2329.

On balance and considering the timing constraints inherent in the SDO process, both the forensic 

community and the greater criminal justice system would be better served by including the 

improved E2329-17 on the registry; working to remove the problematic language from other 

standards as soon as possible; addressing additional comments in subsequent iterations; and 

supporting the good faith efforts of the subcommittee to publish standards that are urgently needed

to ensure the integrity and reliability of criminal convictions involving seized drugs.
The following is a consensus opinion of five (5) individual scientist. This consensus comment represents these 

individuals’ opinions and does not represent the position of NIST, the agency.

We believe that ASTM E2329-17 should not be placed on the OSAC Registry because this Standard does not support the 

reliability of drug testing.

Based on the Title: Standard Practice for Identification of Seized Drugs, this Standard is intended to clearly guide forensic 

laboratories in the identification of an unknown seized substance. As stated in the Scope “1.1. This practice describes 

minimum criteria for the qualitative analysis (identification) of seized drugs.” However, the Standard does not list the 

minimum performance criteria by which laboratory staff could reliably identify a drug. The Standard lists a suite of 18

analytical technologies and assumes the user will figure out how to use each technology and which specific method to 

use. Thus, the document provides little assistance to the examiner in selecting a specific analytical technology or how to 

use it. This allows for many different analyses to be conducted by different laboratories potentially resulting in a lack of 

consistency in the results. For example, there are 75 possible analytical technology combinations (not including visual 

examinations) allowed by this practice if at least one of them is a category A technology and 196 combinations if one 

chooses the 2B+1 approach, giving a total of 271 possible combinations of analytical technologies allowed by the 

practice. Since each analytical technology encompasses many different possible techniques, methods and instruments, 

the practice allows an unknowable number of approaches to drug analysis.

Of the 18 analytical technologies (not techniques or methods) listed in Table 1, the only referenced technique is

microcrystal testing - no other technology-related methods are mentioned or delineated in the Standard. There are few

explanations, references, performance criteria or explicit details of what the analytical technology is required to do – as 

an example - one of the category A technologies is mass spectrometry. This could be interpreted by the user as laser 

ablation ICP-MS, SIMS, Atom Probe MS, DART MS, LC-MS or GC-EI-MS or many other possible mass spectrometry 

techniques. Mass spectrometry is a technology made up of many types of instruments and techniques. 

Looking at this from another perspective, emerging issues in drug identification provide an additional impetus not to 

place E2329-17 on the OSAC Registry. Historically, forensic evaluation of seized drugs entailed the reliable identification 

of one illicit substance. However, since the recent advent of more powerful and analytically more challenging synthetic 

drugs in routine case work, ASTM E2329-17 is no longer suited to the identification of the wide range of seized drugs. In 

this new challenge, small quantities of an active, illicit drug such as fentanyl (and related synthetic analogs) are 

encountered in conjunction with additives, which can be active drugs or inactive. The illicit ingredient(s) may only 

comprise 0.2% to 1% of a seized drug sample rendering the (formerly) most powerful bulk identification techniques such 

as X-ray diffractometry (XRD), Nuclear Magnetic Resonance Spectroscopy, (NMR), Infrared Spectroscopy (IR), unitresolution Mass Spectrometry (MS), Microcrystalline tests, and Raman Spectroscopy (RS) of little or no use in direct 

identifications. Even tablet identification via visual inspection of “Pharmaceutical Identifiers” has limited utility with the 

advent of ever more sophisticated counterfeit color-matching dyes and pill pressing technology. Botanical identification 

of marijuana may miss the presence of added (and more dangerous) fentanyl (or other drug) analogs. 

In addition to the new analytical identification challenges, there is an overarching new consideration – the safety of first 

responders and laboratory personnel. E2329-17 does not address such issues, but this issue must be noted in this new 

reality. A statement such as “Unidentified materials may be extremely dangerous to human health and appropriate 

material handling protocols and personal protective equipment shall be used.” 

To meet this growing current need and to prepare for the future of drug identification, a new Standard for the 

identification of seized drugs is required. Rather than addressing the evaluation of an unknown sample with a userdefined choice of analytical technologies as in ASTM E2329-17, the new Standard should evaluate the sample with a 

hierarchy of analytical techniques and defined methods that accomplish two goals: 1) make the analyst clearly aware of 

the category of hazard provided by the sample and 2) achieve a high level of confidence in the identification of small 

percentages of the illicit drug(s) in the sample. To have any utility, the bulk techniques will have to be used in 

conjunction with some form of pre-separation/drug isolation. Simple color forming tests are rendered even more 
unreliable with these complex samples. In this new Standard, chromatographic techniques such as GC, SFE, TLC, and LC 

will often be required to identify these ‘minor constituent’ drugs. High resolution mass spectrometry (HRMS) will also 

provide higher confidence in identifications. A recent SWGDRUG survey found that 90% of forensic drug labs are already 

using GC (and/or LC) MS and these techniques should be required for most samples. Of the 18 analytical technologies

listed in Table 1, technologies that can separate all the components associated with the emerging synthetic drugs will 

prove more useful for reliable identification.

In the Interim, ASTM E2329-17 and the SWGDRUG recommendations remain available for laboratories making forensic 

drug identifications while a more suitable Standard is under development. 

Submitted by:

Thomas Bruno, Ph.D., Group Leader, Applied Chemicals and Materials Division, National Institute of Standards & 

Technology (NIST)

Jeffrey Horlick, B.S., Physicist/Guest Researcher, Standards Coordination Office, National Institute of Standards & 

Technology (NIST)

William MacCrehan, Ph.D. Research Chemist, Materials and Measurement Laboratory, National Institute of Standards & 

Technology (NIST)

Eric Steel, B.S., Director, Material Measurement Laboratory Forensic Science Program, National Institute of Standards & 

Technology (NIST)

Jennifer Verkouteren, M.S., Physical Scientist, Materials and Measurement Laboratory, National Institute of Standards & 

Technology (NIST)
Origin Category Section Page Line Subject Comment Proposal Commenter

Public Review Comment NA Approve This comment is 

submitted on behalf of 

the Illinois State Police 

Forensic Sciences 

Command.The Illinois 

State Police Forensic 

Science Command is 

supportive of adding 

E2329-17 to the registry 

as a replacement for 

E2329-14. We have 

already adapted our 

own policies at facilities 

across the state of 

Illinois to align with the 

current standard. We 

view the new update as 

a positive improvement, 

especially regarding the 

uncertainty language. 

We have confidence in 

the standard as we 

already employ it in our 

analytical work on a 

daily basis. We 

encourage E2329-17 to 

be adopted by OSAC 

without reservation or 

disclaimer. 

Amanda Shanbaum
Public Review Substantive 6.1.2.1 Microscopi

cal and 

macroscopi

cal 

identificati

on of 

cannabis

Identification of 

botanical material 

utilizing microscopical 

and macroscopical 

characteristics alone 

should not be used for 

the identification of 

cannabis because 

cannabis cannot be 

distinguished from 

hemp which can be 

legally grown in some 

jurisdictions so long as 

the concentration of 

THC does not exceed a 

specified level.

Specify that this 

procedure is not 

applicable to cannabis.

Sarah Olson, NC Indigent 

Defense Services 

Comments (6 individual 

comments)

Forensic Resource 

Counsel

Indigent Defense 

Services

Durham, NC 27701

Phone 919-354-7217

Sarah.R.Olson@nccourts

.org

Public Review Substantive 6.1.2.1 Acceptance 

criteria for 

features

There should be a 

minimum standard for 

what macroscopical and 

microscopical features 

are required for 

identification of 

cannabis. The minimum 

standard should not be 

left to the individual labs 

to determine.

The minimum standard 

for macroscopical and 

microscopical features 

are required for 

identification of 

cannabis should be 

based upon scientifically 

validated procedures for 

the identification of 

cannibas and should be 

specified in this 

document.

Sarah Olson, NC Indigent 

Defense Services 

Comments (6 individual 

comments)

Forensic Resource 

Counsel

Indigent Defense 

Services

Durham, NC 27701
Public Review Substantive 6.1.2.1 photograph

ic 

documenta

tion

Documented details of 

botanical features 

should include 

photographs of the 

evidence material to 

preserve a visual record 

of the appearance and 

features for later review 

by another expert.

Specify that 

photographic evidence 

is required for 

microscopic and 

macroscopic analysis in 

addition to written 

descriptions of features.

Sarah Olson, NC Indigent 

Defense Services 

Comments (6 individual 

comments)

Forensic Resource 

Counsel

Indigent Defense 

Services

Durham, NC 27701

Public Review Substantive 6.1.3 THC 

concentrati

on issue

Identification of 

botanical material 

utilizing morphological 

characteristics alone 

should not be used for 

the identification of 

cannabis because 

cannabis cannot be 

distinguished from 

hemp which can be 

legally grown in some 

jurisdictions so long as 

the concentration of 

THC does not exceed a 

specified level.

Specify that this 

procedure is not 

applicable to cannabis.

Sarah Olson, NC Indigent 

Defense Services 

Comments (6 individual 

comments)

Forensic Resource 

Counsel

Indigent Defense 

Services

Durham, NC 27701
Public Review Substantive 6.1.4.1 Lack of 

data in 

spectra and 

chromatogr

ams

Spectra and 

chromatograms 

provided in laboratory 

discovery packets often 

do not provide enough 

detail to enable an 

expert to review them.

Require that reviewable 

raw data be provided 

rather than 

printedÂ spectra and 

chromatograms alone.

Sarah Olson, NC Indigent 

Defense Services 

Comments (6 individual 

comments)

Forensic Resource 

Counsel

Indigent Defense 

Services

Durham, NC 27701

Public Review Substantive 6.1.6.3 Procedural 

blanks/blin

d 

proficiency 

testing

Procedural blanks needs 

to be more clearly 

defined so that it is clear 

how they should be 

employed (clarify 

whether a blank should 

be used once per day, 

once per run, once per 

analyst preparing 

samples in a batch, 

between each evidence 

sample, etc.). Use of 

blind proficiency testing 

is a good laboratory 

practice that should be 

included in this list.

Change to 

â€œprocedural blanks 

between each evidence 

sample.â€• Use of blind 

proficiency testing 

should be listed as a 

good laboratory 

practice.

Sarah Olson, NC Indigent 

Defense Services 

Comments (6 individual 

comments)

Forensic Resource 

Counsel

Indigent Defense 

Services

Durham, NC 27701